AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 1998
REGISTRATION STATEMENT NO. 333-41843
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 4
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
INTERAMERICAS COMMUNICATIONS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
TEXAS 4813 87-0464860
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
---------------
<TABLE>
<S> <C>
DOUGLAS G. GEIB II
CHIEF FINANCIAL OFFICER
INTERAMERICAS COMMUNICATIONS CORPORATION
2600 DOUGLAS ROAD, SUITE 501 2600 DOUGLAS ROAD, SUITE 501
CORAL GABLES, FLORIDA 33134 CORAL GABLES, FLORIDA 33134
TELEPHONE: (305) 448-4422 TELEPHONE: (305) 448-4422
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
---------------
COPIES OF COMMUNICATIONS TO:
ANDREW HULSH, ESQ.
BAKER & MCKENZIE
1200 BRICKELL AVENUE, SUITE 1900
MIAMI, FLORIDA 33131
TELEPHONE: (305) 789-8900
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
---------------
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
---------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 13, 1998
PROSPECTUS
[INTERAMERICAS COMMUNICATIONS LOGO]
OFFER TO EXCHANGE
14% SENIOR NOTES DUE OCTOBER 27, 2007,
FOR ALL OUTSTANDING 14% SENIOR NOTES DUE OCTOBER 27, 2007
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME ON , 1998 UNLESS EXTENDED.
----------------
InterAmericas Communications Corporation, a Texas corporation ("ICCA" and,
together with its subsidiaries, the "Company"), hereby offers (the "Exchange
Offer"), upon the terms and subject to the conditions set forth in this
prospectus (the "Prospectus") and the accompanying letter of transmittal (the
"Letter of Transmittal"), to exchange $1,000 principal amount of its 14% Senior
Notes due October 27, 2007 (the "New Notes"), which have been registered under
the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
registration statement of which this Prospectus is a part (the "Registration
Statement"), for each $1,000 principal amount of its issued and outstanding 14%
Senior Notes due October 27, 2007 (the "Existing Notes"; the Existing Notes and
the New Notes are collectively referred to as the "Senior Notes"), of which
$150.0 million in aggregate principal amount are outstanding as of the date
hereof. The Existing Notes and Warrants were originally issued and sold by ICCA
in a transaction that was exempt from the registration requirements of the
Securities Act, as part of an offering by ICCA (the "Initial Offering" or
"Senior Note Offering") of 150,000 Units (the "Units"). The Initial Offering
was consummated on October 27, 1997 (the "Closing Date"). Each Unit issued in
the Initial Offering consisted of (i) $1,000 principal amount of Existing Notes
and (ii) 35 warrants (collectively, the "Warrants"), each Warrant representing
the right to purchase one share of Common Stock, $.001 par value (the "Common
Stock") of ICCA at an exercise price of $4.40 per share (the "Warrant Shares").
The Existing Notes and Warrants are not publicly tradable and may be
transferred only pursuant to an effective registration filed under the
Securities Act or in accordance with an exemption from the registration
requirements of the Securities Act. The New Notes will be publicly tradable
upon the effectiveness of this Registration Statement.
The form and terms of the New Notes are the same as the form and terms of
the Existing Notes for which they may be exchanged pursuant to the Exchange
Offer, except that the New Notes will have been registered under the Securities
Act, and hence the New Notes will not bear legends restricting the transfer
thereof. The New Notes, like the Existing Notes (which they replace), will not
be guaranteed, will evidence the same indebtedness as the Existing Notes and
will be entitled to the benefits of the indenture dated as of October 27, 1997
governing the Existing Notes and the New Notes (the "Indenture"). Interest on
the New Notes will be payable semi-annually on April 27 and October 27 of each
year commencing on April 27, 1998. The New Notes will bear interest from and
including October 27, 1997. Holders whose Existing Notes are accepted for
exchange will be deemed to have waived the right to receive any interest
accrued on the Existing Notes. See "The Exchange Offer" and "Description of New
Notes." See "Description of New Notes--Certain Definitions" for definitions of
certain terms used herein which are capitalized.
SEE "RISK FACTORS" COMMENCING ON PAGE 19 FOR CERTAIN INFORMATION THAT SHOULD BE
CONSIDERED IN CONNECTION WITH THE EXCHANGE OFFER AND AN INVESTMENT IN THE NEW
NOTES.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
----------------
The date of this Prospectus is , 1998
<PAGE>
The Existing Notes and New Notes will be redeemable at the option of ICCA,
in whole or in part, at any time on or after October 27, 2002, at the
redemption prices set forth herein plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of redemption. In addition, at the
option of ICCA, up to 331/3% of the aggregate principal amount of Existing
Notes and New Notes may be redeemed at any time on or prior to October 27, 2000
at a redemption price of 114% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the redemption date,
with the net cash proceeds received by ICCA from the issuance and sale of its
Qualified Capital Stock to the public in a registered public offering or to one
or more Strategic Equity Investors to the extent that such cash proceeds have
been, and continue to be, designated as Designated Equity Proceeds to be used
for such purpose as provided in the definition thereof; provided that at least
662/3% of the original aggregate principal amount of the Existing Notes and New
Notes remain outstanding immediately after the occurrence of each such
redemption; and provided, further, that such redemption occurs within 45 days
of the date of the closing of any such public offering or sale to such
Strategic Equity Investors. In the event of a Change of Control, holders of the
Existing Notes and New Notes will have the right to require ICCA to purchase
their Existing Notes and New Notes, in whole or in part, at a price equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest
and Liquidated Damages, if any, thereon to the date of repurchase. There can be
no assurance that ICCA will have the financial resources necessary to
repurchase the Existing Notes and New Notes upon a Change of Control. See "Risk
Factors--Risks Related to Change of Control Provision."
The New Notes will rank senior in right of payment to all subordinated
indebtedness of ICCA incurred in the future, if any. The New Notes will rank
equal in right of payment of all senior indebtedness of ICCA, if any, incurred
in the future. The New Notes will be secured by a first priority pledge
pursuant to that certain Proceeds Pledge and Escrow Agreement. See "Description
of Senior Notes--Proceeds Pledge and Escrow Agreement."
All of the operations of ICCA are conducted through its subsidiaries and,
therefore, ICCA is dependent upon the cash flow of its subsidiaries to meet its
obligations, including its obligations under the New Notes. The obligations
under the New Notes will be effectively subordinated to all indebtedness and
other liabilities and commitments (including trade payables and lease
obligations) of ICCA's subsidiaries. Any right of ICCA to receive assets of any
of its subsidiaries upon the latter's liquidation or reorganization (and the
consequent right of the holders of the New Notes to participate in those
assets) will be effectively subordinated to the claims of that subsidiary's
creditors, except to the extent that ICCA is itself recognized as a creditor of
such subsidiary and any indebtedness of such subsidiary senior to that held by
ICCA. As of March 31, 1998, ICCA's subsidiaries had approximately $548,000 of
indebtedness and $3.5 million of trade payables and other liabilities
outstanding. In addition, under the Indenture, ICCA's subsidiaries are
permitted to incur certain additional Indebtedness, the terms of which may
restrict the ability of its subsidiaries to pay dividends to ICCA. See
"Description of Senior Notes--Certain Covenants--Incurrence of Indebtedness and
Issuance of Preferred Stock" and "Risk Factors--Holding Company Structure;
Inability to Access Cash Flow."
The Company will accept for exchange any and all validly tendered Existing
Notes prior to 5:00 p.m., New York City time on , 1998 (the "Expiration
Date"), unless the Company, in its sole discretion, extends the Exchange Offer
(in which case the term "Expiration Date" shall mean the latest date and time
to which the Exchange Offer is extended). Tenders of Existing Notes may be
withdrawn at any time prior to the Expiration Date. The Exchange Offer is
subject to certain customary conditions. See "The Exchange Offer--Conditions."
Existing Notes may be tendered only in integral multiples of $1,000.
Holders of Existing Notes whose Existing Notes are not tendered and
accepted in the Exchange Offer will continue to hold such Existing Notes and
will be entitled to all the rights and preferences and will be subject to the
limitations applicable thereto under the Indenture. Following the consummation
i
<PAGE>
of the Exchange Offer, the holders of Existing Notes will continue to be
subject to the existing restrictions upon transfer of the Existing Notes and
the Company will have no further obligation to such holders to provide for the
registration under the Securities Act of the Existing Notes held by them;
provided, however, that, if any holder of the Existing Notes notifies ICCA
within 20 days of the consummation of the Exchange Offer: (A) that such holder
is prohibited by applicable law or the policy of the Securities and Exchange
Commission (the "Commission") from participating in the Exchange Offer, (B)
that such holder may not resell the New Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the Prospectus
contained in the Form S-4 Registration Statement relating to the Exchange Offer
(the "Exchange Offer Registration Statement") is not appropriate or available
for such resales by such holder, or (C) that such holder is a broker-dealer and
holds Existing Notes acquired directly from the Company or one of its
affiliates, then the Company shall cause to be filed a registration statement
on or prior to the Shelf Filing Deadline, which provides for resales of all
Existing Notes. In the event of a Registration Default, the Company is required
to pay Liquidated Damages. See "The Exchange Offer--Liquidated Damages" and
"Description of Senior Notes--Registration Rights; Liquidated Damages."
The New Notes are being offered hereunder in order to satisfy certain
obligations of the Company under the Registration Rights Agreement between the
Company and UBS Securities LLC (the "Initial Purchaser"). The Company makes the
Exchange Offer in reliance on the position of the Commission's staff as set
forth in certain no-action letters issued to other parties in other
transactions. However, the Company has not sought its own no-action letter and
there can be no assurance that the Commission's staff would make a similar
determination with respect to the Exchange Offer as in such other
circumstances. Based on these interpretations of the Commission's staff, the
Company believes that the New Notes issued pursuant to this Exchange Offer in
exchange for Existing Notes may be offered for resale, resold and otherwise
transferred by holders thereof (other than any such holder which is (i) a
broker-dealer who acquired such Existing Notes directly from the Company for
resale pursuant to Rule 144A under the Securities Act or any other available
exemption under the Securities Act or (ii) a person that is an Affiliate,
without compliance with the registration and prospectus delivery provisions of
the Securities Act; provided that the holder is acquiring the New Notes in the
ordinary course of its business and is not participating, does not intend to
participate, and has no arrangement or understanding with any person to
participate, in the distribution of the New Notes. Holders of Existing Notes
wishing to accept the Exchange Offer must represent to the Company, as required
by the Registration Rights Agreement, that such conditions have been met. Each
broker-dealer that receives the New Notes for its own account in exchange for
the Existing Notes, where such Existing Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Notes. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. This Prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with resales of New Notes
received in exchange for Existing Notes where such Existing Notes were acquired
by such broker-dealer as a result of market-making activities or other trading
activities. The Company has indicated its intention to make this Prospectus (as
it may be amended or supplemented) available to any broker-dealer for use in
connection with any such resale for a period of 120 days after the Expiration
Date. See "Plan of Distribution." The Company believes that none of the
registered holders of the Existing Notes is an Affiliate of the Company.
The Private Securities have been designated eligible for trading in the
Private Initial Offerings, Resales and Trading through Automated Linkages
("PORTAL") Market of the National Association of Securities Dealers, Inc. (the
"NASD"). The Company does not intend to list the New Notes or Warrants on any
national securities exchange or to seek the trading thereof through any
automated quotation system. The Company has been advised by the Initial
Purchaser of the Units in the Initial Offering, that it currently intends to
make a market in the New Notes. However, the Initial Purchaser is
ii
<PAGE>
not obligated to do so and any market-making activities with respect to the New
Notes may be discontinued at any time without notice. In addition, such market
making activity will be subject to certain limitations imposed by the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). Accordingly,
no assurance can be given regarding the future development of a market for the
New Notes or Warrants, or the ability of holders thereof to sell their New
Notes or Warrants, or the price at which such sales can be made. If such a
market were to develop, the New Notes or Warrants could trade at prices that
may be higher or lower than the initial public offering price depending on many
factors, including prevailing interest rates, the Company's operating results
and the market for similar securities. See "Risk Factors--Lack of Public
Market."
The Company will not receive any proceeds from, and has agreed to bear all
registration expenses of, the Exchange Offer. See "Use of Proceeds." No
dealer-manager is being used in connection with this Exchange Offer. See "Plan
of Distribution" and "The Exchange Offer--Resale of New Notes."
The Common Stock is traded on the Nasdaq SmallCap Market ("Nasdaq") under
the symbol "ICCA." On July 29, 1998, the last sale price for the Common Stock
as reported by Nasdaq was $2.06 per share.
iii
<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS OR THE ACCOMPANYING LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY, OR ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR THE ACCOMPANYING LETTER OF TRANSMITTAL NOR ANY
RESALE MADE THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF. THIS PROSPECTUS AND THE ACCOMPANYING LETTER OF TRANSMITTAL
DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF
THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
THIS PROSPECTUS INCLUDES "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING
OF THE FEDERAL SECURITIES LAWS, INCLUDING THE PRIVATE SECURITIES LITIGATION
REFORM ACT OF 1995. ALL STATEMENTS REGARDING ICCA'S AND ITS SUBSIDIARIES'
EXPECTED FINANCIAL POSITION, BUSINESS AND FINANCING PLANS ARE FORWARD-LOOKING
STATEMENTS. ALTHOUGH THE COMPANY BELIEVES THAT THE EXPECTATIONS REFLECTED IN
SUCH FORWARD-LOOKING STATEMENTS ARE REASONABLE, THERE CAN BE NO ASSURANCE THAT
SUCH EXPECTATIONS WILL PROVE TO HAVE BEEN CORRECT. IMPORTANT FACTORS THAT COULD
CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM SUCH EXPECTATIONS ("CAUTIONARY
STATEMENTS") ARE DISCLOSED IN THIS PROSPECTUS, INCLUDING, WITHOUT LIMITATION,
THE INFORMATION UNDER "RISK FACTORS," "MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS" AND "BUSINESS." ALL SUCH
FORWARD-LOOKING STATEMENTS ARE EXPRESSLY QUALIFIED IN THEIR ENTIRETY BY THE
CAUTIONARY STATEMENTS.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF EXISTING NOTES IN ANY JURISDICTION IN
WHICH THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE
WITH THE SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
UNTIL , 1998 (90 DAYS AFTER THE DATE OF THIS EXCHANGE OFFER), ALL
DEALERS OFFERING TRANSACTIONS IN THE NEW NOTES, WHETHER OR NOT PARTICIPATING IN
THIS EXCHANGE OFFER, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN
ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS
UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
The New Notes will be available initially only in book-entry form. The
Company expects that the New Notes issued pursuant to this Exchange Offer will
be issued in the form of one or more fully registered global notes which will
be deposited with the Depository Trust Company (the "Depository" or "DTC") and
registered in its name or in the name of Cede & Co., its nominee. Beneficial
interests in the global note representing the New Notes will be shown on, and
transfers thereof will be effected only through, records maintained by the
Depository and its participants. After the initial issuance of such global
note, New Notes in certificated form will be issued in exchange for the global
note only as set forth in the Indenture. See "Description of Senior Notes--Book
Entry."
----------------
1
<PAGE>
NOTICE TO NEW HAMPSHIRE RESIDENTS
NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A
LICENSE HAS BEEN FILED UNDER CHAPTER 421-B OF THE NEW HAMPSHIRE REVISED
STATUTES WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS
EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW HAMPSHIRE
CONSTITUTES A FINDING BY THE SECRETARY OF STATE THAT ANY DOCUMENT FILED UNDER
RSA 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE
FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR A
TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE
MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON,
SECURITY OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY
PROSPECTIVE PURCHASER, CUSTOMER OR CLIENT ANY REPRESENTATION INCONSISTENT WITH
THE PROVISIONS OF THIS PARAGRAPH.
INFORMATION CONTAINED IN THE PROSPECTUS
THE INFORMATION CONTAINED IN THIS PROSPECTUS HAS BEEN FURNISHED BY THE
COMPANY AND OBTAINED FROM INTERNAL COMPANY SURVEYS, INDUSTRY PUBLICATIONS AND
CURRENTLY AVAILABLE INFORMATION WHICH THE COMPANY BELIEVES TO BE RELIABLE.
REFERENCE IS MADE TO THE ACTUAL DOCUMENTS, COPIES OF WHICH WILL BE MADE
AVAILABLE UPON REQUEST, FOR THE COMPLETE INFORMATION CONTAINED THEREIN. ALL
SUMMARIES OF THE TERMS OF SUCH DOCUMENTS ARE QUALIFIED IN THEIR ENTIRETY BY
THIS REFERENCE.
2
<PAGE>
EXCHANGE RATE DATA
This Prospectus contains translations of certain Peruvian Nuevo Sol and
Chilean Peso amounts into U.S. dollars at specified rates solely for the
convenience of the reader. These translations should not be construed as
representations that the Peruvian Nuevo Sol and Chilean Peso amounts actually
represent such U.S. dollar amounts or could be converted into U.S. dollars at
the rate indicated, or at all.
PERU
The following table sets forth, for the periods ending on the date
indicated, the high, low, average and period-end free-market exchange rate. The
Federal Reserve Bank of New York does not report a noon buying rate for
Peruvian Nuevo Sol.
<TABLE>
<CAPTION>
PERIOD--
PERIOD-- HIGH LOW AVERAGE(1) END
- ------------------------------------------- --------- --------- ------------ ---------
<S> <C> <C> <C> <C>
Year ended December 31, 1994 .............. 2.27 2.04 2.19 2.18
Year ended December 31, 1995 .............. 2.35 2.17 2.25 2.30
Year ended December 31, 1996 .............. 2.60 2.30 2.45 2.60
Year ended December 31, 1997 .............. 2.73 2.61 2.66 2.72
Three months ended March 31, 1998 ......... 2.82 2.72 2.79 2.81
</TABLE>
- ----------------
Source: Extel Pricing Database.
(1) Average daily exchange rate.
CHILE
The following table sets forth, for the periods ending on the date
indicated, the high, low, average and period-end free-market exchange rate. The
Federal Reserve Bank of New York does not report a noon buying rate of Chilean
Pesos.
<TABLE>
<CAPTION>
PERIOD--
PERIOD-- HIGH LOW AVERAGE(1) END
- ------------------------------------------- ----------- ----------- ------------ -----------
<S> <C> <C> <C> <C>
Year ended December 31, 1994 .............. 433.67 398.25 419.83 400.21
Year ended December 31, 1995 .............. 418.76 367.94 396.60 406.91
Year ended December 31, 1996 .............. 424.87 402.68 412.16 424.87
Year ended December 31, 1997 .............. 439.81 411.85 419.31 439.81
Three months ended March 31, 1998 ......... 466.95 439.18 451.51 454.34
</TABLE>
- ----------------
Source: Extel Pricing Database and Chilean Central Bank.
(1) Average daily exchange rate.
Unless otherwise indicated, industry and demographic data used throughout
this Prospectus have been obtained from the following industry publications and
have not been independently verified by the Company: Bank of America World
Information Services (March 1997); Telecom Markets in South America, Pyramid
Research, Inc. (October 1996) (the "Pyramid Research Report"); Subsecretaria de
Telecomunicaciones of the Republic of Chile (1997); National Bureau of
Statistics of the Republic of Peru (1997); Telefonica del Peru, S.A. 1996
Annual Report and Press Release in connection with the presentation of 2nd
Quarter 1997 financial results dated July 31, 1997.
3
<PAGE>
AVAILABLE INFORMATION
ICCA has filed with the Commission a Registration Statement on Form S-4
(together with any amendments thereto, the "Registration Statement") under the
Securities Act with respect to the New Notes offered hereby. The New Notes will
be publicly tradable upon the effectiveness of this Registration Statement.
However, the Existing Notes and Warrants, which were originally issued and sold
by ICCA in a transaction that was exempt from the registration requirements of
the Securities Act, are not publicly tradable. As permitted by the rules and
regulations of the Commission, this Prospectus omits certain information,
exhibits and undertakings contained in the Registration Statement. For further
information with respect to ICCA and the New Notes offered hereby, reference is
made to the Registration Statement, including the exhibits thereto and the
financial statements, notes and schedules filed as a part thereof. In addition,
ICCA is subject to the informational and reporting requirements of the Exchange
Act and, in accordance therewith, files reports, proxy statements and other
information with the Commission. The Registration Statement, the exhibits and
schedules thereto, reports and other information filed with or furnished to the
Commission by ICCA may be inspected at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the Commission's regional offices at 7 World Trade Center, 13th Floor,
New York, New York 10048 and Northwestern Atrium Center, 500 West Madison
Street, Chicago, Illinois 6061-2511. Copies of such materials may be obtained,
at prescribed rates, by mail from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 and such material
may be accessed through the web site maintained by the Commission at
http://www.sec.gov.
Pursuant to the Indenture, ICCA has agreed to furnish to State Street Bank
and Trust Company, N.A., the trustee (the "Trustee"), and to registered holders
of the Existing Notes and New Notes, without cost to the Trustee or such
registered holders, copies of all reports and other information that would be
required to be filed by ICCA with the Commission under the Exchange Act,
whether or not ICCA is then required to file reports with the Commission. In
the event that ICCA ceases to be subject to the informational requirements of
the Exchange Act, ICCA has agreed that, so long as any Existing Notes and New
Notes remain outstanding, it will file with the Commission (but only if the
Commission at such time is accepting such voluntary filings) and distribute to
holders of the Existing Notes and New Notes, as applicable, copies of the
financial information that would have been contained in such annual reports and
quarterly reports, including management's discussion and analysis of financial
condition and results of operations, that would have been required to be filed
with the Commission pursuant to the Exchange Act. ICCA will also furnish such
other reports as it may determine or as may be required by law.
4
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE DETAILED
INFORMATION, INCLUDING RISK FACTORS AND FINANCIAL STATEMENTS AND NOTES THERETO,
LOCATED ELSEWHERE IN THIS PROSPECTUS. CERTAIN OF THE INFORMATION CONTAINED IN
THIS SUMMARY AND ELSEWHERE IN THIS PROSPECTUS, INCLUDING INFORMATION WITH
RESPECT TO THE COMPANY'S PLANS AND STRATEGY FOR ITS BUSINESS, ACQUISITIONS AND
RELATED FINANCINGS, ARE FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF THE
FEDERAL SECURITIES LAWS, INCLUDING THE PRIVATE SECURITIES LITIGATION REFORM ACT
OF 1995. ALTHOUGH THE COMPANY BELIEVES THAT THE EXPECTATIONS REFLECTED IN SUCH
FORWARD-LOOKING STATEMENTS ARE REASONABLE, THERE CAN BE NO ASSURANCE THAT SUCH
EXPECTATIONS WILL PROVE TO HAVE BEEN CORRECT. IMPORTANT FACTORS THAT COULD
CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM SUCH EXPECTATIONS ("CAUTIONARY
STATEMENTS") ARE DISCLOSED IN THIS PROSPECTUS, INCLUDING, WITHOUT LIMITATION,
THE INFORMATION UNDER "RISK FACTORS," "MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS" AND "BUSINESS." ALL SUCH
FORWARD-LOOKING STATEMENTS ARE EXPRESSLY QUALIFIED IN THEIR ENTIRETY BY THE
CAUTIONARY STATEMENTS. ASUSED HEREIN, THE TERM "LATIN AMERICA" MEANS CENTRAL
AMERICA, SOUTH AMERICA AND MEXICO. EXCEPT AS OTHERWISE INDICATED, ALL DOLLAR
AMOUNTS ARE EXPRESSED IN UNITED STATES DOLLARS AND REFERENCES TO "DOLLARS" AND
"$" ARE TO UNITED STATES DOLLARS. SEE "GLOSSARY OF DEFINED TERMS," FOR
DEFINITIONS OF CERTAIN TECHNICAL TELECOMMUNICATIONS AND INDUSTRY TERMS USED
HEREIN WHICH ARE CAPITALIZED AND "DESCRIPTION OF SENIOR NOTES--CERTAIN
DEFINITIONS" FOR DEFINITIONS OF CERTAIN OTHER TERMS USED HEREIN WHICH ARE
CAPITALIZED
THE COMPANY
The Company is a new provider of high bandwidth integrated
telecommunications services to high volume users in Santiago, Chile and Lima,
Peru, including business customers and other telecommunications carriers. The
Company believes that the size, expected growth and increasing deregulation of
the telecommunications industry in Latin America offers the Company
considerable opportunities to broaden its existing service offerings and to
expand its recently commenced operations into additional key Latin American
business centers.
Prior to November 1996, the Company operated as a development stage
company whose activities primarily consisted of the acquisition of licenses,
concessions and rights-of-way in certain key Latin American markets. Beginning
in November 1996, with the hiring of a new management team, the Company has
focused on the development and operation of high capacity fiber optic networks
in Lima, Peru and Santiago, Chile.
In May 1996, the Company acquired an operating company in Peru which holds
one of only two local concessions that compete with Telefonica del Peru S.A.
("Telefonica") to provide local private line voice and data services. The
Company intends to expand its existing service offerings to provide local
public switched telephony upon the planned 1999 liberalization of Peru's
telecommunications markets. The Company also intends to apply for a concession
to provide public switched long distance services as regulation permits. The
Company currently offers high speed data transmission services on a private
line basis, including area network interconnection, remote terminal access,
dedicated channels for access to the Internet and voice services on a private
line basis. The Company's services are provided through its 230 kilometer
digital fiber optic network in Lima, Peru, which the Company intends to expand
to approximately 400 kilometers. When completed, the Company's fiber optic
network will extend throughout the major commercial and industrial districts of
Lima and the port city of Callao (combined population of 7.5 million). The
Company anticipates substantial completion of its ATM network in Peru,
including last mile connections to approximately 150 buildings before the end
of 1998. The Company believes that its planned fiber optic network expansion
and early implementation of private line and value-added services prior to the
scheduled expiration of Telefonica's exclusive concession for public switched
local and long distance services in July 1999 will enable the Company to
develop a strong customer base and network presence.
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In Chile, the Company currently holds concessions to provide (i) voice and
data transmission services and value-added services on a private line basis and
(ii) public switched domestic and international long distance services. The
Company also maintains a concession to own and operate satellite earth stations
throughout Chile and anticipates being granted in the fourth quarter of 1998 a
concession to provide local public switched telephony services in Santiago. The
Company currently provides similar services to those offered in Peru, as well
as (i) private line remote analog digital telephone access and digital links
for PBX to PBX connections, (ii) local and wide area network design and
engineering and (iii) systems installation, integration and support services.
The Company's services are provided through its 120 kilometer digital fiber
optic network which currently extends through most of Santiago's downtown
business district and the outlying industrial park and airport corridors. With
the completion of last mile connections to approximately 150 buildings,
scheduled for the end of 1998, and approval of a local telephony concession,
the Company believes that it will be able to substantially broaden its product
and service offerings and significantly increase its revenues in Chile.
In December 1997, the Company acquired FirstCom Long Distance, S.A.
("FirstCom Long Distance"), formerly Iusatel Chile, S.A., located in Santiago,
Chile, which provides domestic and international long distance services.
FirstCom Long Distance's long distance traffic is switched and transported, in
part, through its own gateway switch and satellite earth station, as well as
through interconnections with other Chilean long distance carriers. The Company
believes that the acquisition of FirstCom Long Distance will enable the Company
to: (i) provide long distance services to its existing corporate customers;
(ii) bundle a variety of service offerings, including long distance and data
services, to attract additional customers; and (iii) access the approximately
$178.2 million Chilean international long distance market.
Local and long distance telecommunications revenues in Peru were
approximately $885.5 million in 1996 and are estimated by Pyramid Research,
Inc. ("Pyramid") to increase to approximately $1.9 billion in the year 2000,
representing a compound annual growth rate of 21%. Local and long distance
telecommunications revenues in Chile were approximately $1.1 billion in 1996
and are estimated by Pyramid to increase to approximately $2.2 billion in the
year 2000, representing a compound annual growth rate of 16%.
Upon completion of its anticipated upgrades, scheduled for the end of
1998, all of the Company's existing and planned fiber optic networks will
employ ATM transmission technology with centralized network monitoring control
and maintenance. The Company believes its networks allow it to provide its
customers with uniform, reliable, high quality services which are competitive
with or exceed those services provided by former PTTs and other carriers in the
markets in which it operates.
While the Company only recently commenced its current operations, the
Company's customers already include, among others, Xerox de Chile S.A.,
Autorentas del Pacifico (Hertz) Ltda. and Nike de Chile S.A. in Chile and Sony
Music Entertainment Peru S.A., Banco Interbank del Peru S.A. ("Interbank") and
one ISP in Peru. Upon the substantial completion of its networks, including
last mile connections to 150 buildings in each of Peru and Chile, scheduled for
the end of 1998, the Company will be able to market aggressively its service
offerings to additional business customers and other telecommunications
carriers. The Company also believes that dedicated access to ISPs will
represent a significant source of new customer relationships in both Chile and
Peru because of the anticipated rapid increase in the number of Internet users
throughout Latin America.
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BUSINESS STRATEGY
The Company's goal is to become a leading provider of high bandwidth
telecommunications services to businesses and other high volume users and
carriers operating in key Latin American business centers. The Company follows
a regional business strategy in Latin America as set forth below. The Company
has modified this strategy to adapt to the specific economic and regulatory
environments of each market in which the Company operates and intends to
operate in the future. The Company's ability to implement its business strategy
may be affected by a number of factors including, among others, the following:
general national and international economic and business conditions, as well as
conditions in the regions in which the Company operates; demographic change;
existing government regulations and changes in, or the failure to comply with,
government regulations; competition; the loss of any significant customers;
changes in business strategy or development plans; technological developments;
the ability to attract and retain qualified personnel; the significant
indebtedness of the Company; the availability and terms of capital to fund the
expansion of the Company's business; and other factors referenced in this
Prospectus. Each of these factors is, to a large extent, subject to economic,
financial, competitive, regulatory and other factors, many of which are beyond
the Company's control. Accordingly, there can be no assurance that the Company
will successfully implement its business strategy in whole or in part. The
Company's viability, profitability, and growth depend upon the successful
implementation of its business plan. See "Risk Factors", "Business--Business
and Services--Peru--Country Strategy," and "--Chile--Country Strategy."
FOCUS ON KEY MARKETS IN LATIN AMERICA
The Company believes that the size and growth potential of key Latin
American business centers coupled with the ongoing liberalization of the
telecommunications markets throughout the region offer the Company considerable
growth opportunities. The Company intends to build upon its existing operations
and expertise and expand the geographic reach and density of its existing
networks as well as enter additional key Latin American business centers that
have (i) a significant level of unsatisfied demand for high quality,
state-of-the-art telecommunications services, (ii) a favorable regulatory
environment and (iii) significant projected economic growth.
ENTER MARKETS EARLY
The Company seeks to enter markets in Latin America where it can construct
or acquire fiber optic networks and offer telecommunications services in advance
of full market liberalization. The Company has already implemented this strategy
in Lima, where it is one of the first companies to have established a
telecommunications system prior to the liberalization of Peru's
telecommunications markets in August 1998. The Company believes that this early
entry into the Lima market will enable the Company to establish strong business
relationships with its targeted customers prior to onset of widespread
competition.
PROVIDE A BROAD RANGE OF HIGH QUALITY TELECOMMUNICATIONS SERVICES
The Company intends to follow the strategy implemented by CLECs in the
United States of installing advanced equipment into their existing fiber optic
networks that enable interconnections with existing public networks and the
provision of switched telephone services. As regulation permits, the Company
will seek to secure a growing portion of its existing and targeted customers'
telecommunications business by adding local, long distance, enhanced voice and
data services to the private line services it currently offers. The Company
believes its customers require maximum reliability, high quality service, broad
geographic coverage, strong customer service and the opportune introduction of
innovative services delivered in a timely and cost-effective manner. The
Company believes that these needs are often left unmet by the former PTT in
markets where the Company currently operates.
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<PAGE>
TARGET BUSINESS CUSTOMERS AND TELECOMMUNICATIONS CARRIERS
The Company's strategy is to target business customers and
telecommunications carriers in key Latin American business centers. These
customers are typically located in major metropolitan areas, require high
reliability, high volume data transmission and voice capabilities and, in the
case of telecommunications carriers, very large capacity to interconnect POPs.
In addition, many of the Company's existing and targeted customers have
operations in more than one key Latin American business center in which the
Company currently operates or may operate in the future. The Company believes
that by targeting customers with multiple geographic locations it will achieve
operating synergies through the reduction of advertising and other related
costs.
GROWTH THROUGH ACQUISITIONS AND NEW LICENSES
The Company expects to opportunistically enter additional key Latin
American business centers in part by acquiring controlling interests in
existing companies that have licenses, concessions and rights-of-way to install
and operate fiber optic networks or by applying for such licenses and
concessions and negotiating such rights-of-way directly. The Company may also
acquire other telecommunications service providers in existing and targeted
markets that enable the Company to expand or enhance its current operations.
The Company believes that many emerging local and long distance carriers,
cellular providers and recently privatized PTTs are likely to seek alliances
with local access providers with fiber optic systems, such as the Company, to
compete more effectively in the growing telecommunications markets.
GROWTH THROUGH STRATEGIC ALLIANCES
The Company intends to establish strategic alliances with the following
entities for the following purposes: (i) to engage major international carriers
to facilitate the termination or completion of dedicated international calls to
or from the countries where carriers' customers operate and (ii) to enter into
joint bids with local turnkey integrators and equipment vendors for the sale of
value-added services, such as video-conferencing, Internet, frame relay, ATM
networks, LAN to LAN interconnections, PBX and private telephone networks.
UNIFY MARKETING IDENTITY
The Company intends to conduct its business under a single brand name in
the markets in which it operates to develop name recognition for its services.
In this regard, the Company has filed an application to register the name
"FirstCom" in Chile, Peru and the United States. The Company believes that the
use of a recognized brand name will facilitate customer referrals and achieve
economies of scale through a unified marketing campaign.
----------------
The Company was incorporated in Nevada in April 1989 and reincorporated in
Texas in July 1994. The Company's principal executive offices are located at
2600 Douglas Road, Suite 501, Coral Gables, Florida 33134, and its telephone
number at such offices is (305) 448-4422.
8
<PAGE>
THE EXCHANGE OFFER
THE EXCHANGE OFFER
THE EXCHANGE OFFER: The Company is hereby offering to exchange $1,000
principal amount of New Notes for each $1,000
principal amount of Existing Notes that are properly
tendered and accepted. The Company will issue New
Notes on or promptly after the Expiration Date.
There is $150.0 million aggregate principal amount
of Existing Notes outstanding. See "The Exchange
Offer." The Company makes this Exchange Offer in
reliance on the position of the Commission's staff
as set forth in certain no-action letters issued to
other parties in other transactions. However, the
Company has not sought its own no-action letter and
there can be no assurance that the Commission's
staff would make a similar determination with
respect to the Exchange Offer as in such other
circumstances. Based on these interpretations of the
Commission's staff, the Company believes that the
New Notes issued pursuant to this Exchange Offer in
exchange for Existing Notes may be offered for
resale, resold and otherwise transferred by holders
thereof (other than any such holder which is (i) a
broker-dealer who acquired the Existing Notes
directly from the Company for resale pursuant to
Rule 144A under the Securities Act or any other
available exemption under the Securities Act or (ii)
a person that is an Affiliate, without compliance
with the registration and prospectus delivery
provisions of the Securities Act, provided that the
holder is acquiring the New Notes in the ordinary
course of its business and is not participating,
does not intend to participate, and has no
arrangement or understanding with any person to
participate, in the distribution of the New Notes.
Each broker-dealer that receives the New Notes for
its own account in exchange for the Existing Notes,
where such Existing Notes were acquired by such
broker-dealer as a result of market-making
activities or other trading activities, must
acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes.
REGISTRATION RIGHTS AGREEMENT: The Existing Notes and Warrants were sold by the
Company on October 27, 1997 to the Initial Purchaser
pursuant to a Purchase Agreement dated October 21,
1997 by and between the Company and the Initial
Purchaser (the "Purchase Agreement"). Pursuant to
the Purchase Agreement, the Company and the Initial
Purchaser entered into the Registration Rights
Agreement, which grants the holders of the Existing
Notes certain exchange and registration rights. See
"The Exchange Offer--Termination of Certain Rights."
This Exchange Offer is intended to satisfy such
rights, which terminate upon the consummation of the
Exchange Offer. The holders of the New Notes are not
entitled to any exchange or registration rights with
respect to the New Notes.
EXPIRATION DATE: The Exchange Offer will expire at 5:00 p.m., NewYork
City time, on , 1998 unless the Exchange Offer
is extended by the Company, in its sole discretion.
9
<PAGE>
ACCRUED INTEREST ON THE
NEW NOTES AND EXISTING NOTES: The New Notes will bear interest from and
including October 27, 1997. Holders whose Existing
Notes are accepted for exchange will be deemed to
have waived the right to receive any interest
accrued on the Existing Notes.
CONDITIONS TO THE
EXCHANGE OFFER: The Exchange Offer is subject to certain customary
conditions, which may be waived by the Company. The
Company reserves the right to terminate or amend the
Exchange Offer at any time prior to the Expiration
Date upon the occurrence of any such condition. See
"The Exchange Offer--Conditions." The Exchange Offer
is not conditioned upon any minimum aggregate
principal amount of Existing Notes being tendered
for exchange.
PROCEDURES FOR TENDERING
EXISTING NOTES: Each holder of Existing Notes wishing to accept the
Exchange Offer must complete, sign and date the
Letter of Transmittal, or a facsimile thereof, in
accordance with the instructions contained herein
and therein, and mail or otherwise deliver such
Letter of Transmittal, or such facsimile, together
with such Existing Notes and any other required
documentation to State Street Bank & Trust Company,
N.A., as exchange agent (the "Exchange Agent"), at
the address set forth therein. By executing the
Letter of Transmittal, each holder will represent to
the Company that, among other things, (i) the New
Notes to be acquired by the holder of the Existing
Notes in connection with the Exchange Offer are
being acquired by the holder in the ordinary course
of business of the holder; (ii) the holder has no
arrangement or understanding with any person to
participate in the distribution of New Notes; (iii)
the holder acknowledges and agrees that any person
who is a broker-dealer registered under the Exchange
Act or is participating in the Exchange Offer for
the purposes of distributing the New Notes must
comply with the registration and prospectus delivery
requirements of the Securities Act in connection
with a secondary resale transaction of the New Notes
acquired by such person and cannot rely on the
position of the Commission set forth in no-action
letters (See "The Exchange Offer--Resale of New
Notes"); (iv) the holder understands that a
secondary resale transaction described in clause
(iii) above and any resales of New Notes obtained by
such holder in exchange for Existing Notes acquired
by such holder directly from the Company should be
covered by an effective registration statement
containing the selling securityholder information
required by Item 507 or Item 508, as applicable, of
Regulation S-K of the Commission; and (v) the holder
is not an "affiliate," as defined in Rule 405 under
the Securities Act, of the Company. If the holder is
a broker-dealer that will receive New Notes for its
own account in exchange for Existing Notes that were
acquired as a result of market-making activities or
other trading activities, the holder is required to
acknowledge in the Letter of Transmittal that it
will deliver a prospectus in connection with any
resale of such New Notes; however, by so
acknowledging and by delivering a
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<PAGE>
prospectus, the holder will not be deemed to admit
that it is an "underwriter" within the meaning of
the Securities Act. See "The Exchange
Offer--Procedure for Tendering."
SPECIAL PROCEDURES FOR
BENEFICIAL OWNERS: Any beneficial owner whose Existing Notes are
registered in the name of a broker, dealer,
commercial bank, trust company or other nominee and
who wishes to tender such Existing Notes in the
Exchange Offer should contact such registered holder
promptly and instruct such registered holder to
tender the Existing Notes on such beneficial owner's
behalf. See "The Exchange Offer--Procedures for
Tendering." If such beneficial owner wishes to
tender the Existing Notes on such owner's own
behalf, such owner must, prior to completing and
executing the Letter of Transmittal and delivering
the Existing Notes, either make appropriate
arrangements to register ownership of the Existing
Notes in such owner's name or obtain a properly
completed bond power from the registered holder. The
transfer of registered ownership may take
considerable time and may not be able to be
completed prior to the Expiration Date.
GUARANTEED DELIVERY
PROCEDURES: Holders of Existing Notes who wish to tender their
Existing Notes and whose Existing Notes are not
immediately available or who cannot deliver their
Existing Notes, the Letter of Transmittal or any
other documents required by the Letter of
Transmittal to the Exchange Agent prior to the
Expiration Date, must tender their Existing Notes
according to the guaranteed delivery procedures set
forth in "The Exchange Offer--Guaranteed Delivery
Procedures."
ACCEPTANCE OF THE
EXISTING NOTES AND DELIVERY
OF THE NEW NOTES: Subject to the satisfaction or waiver of the
conditions to the Exchange Offer, the Company will
accept for exchange any and all Existing Notes which
are properly tendered in the Exchange Offer prior to
the Expiration Date. The New Notes issued pursuant
to the Exchange Offer will be delivered on or
promptly after the Expiration Date. See "The
Exchange Offer--Terms of the Exchange Offer."
WITHDRAWAL RIGHTS: Tenders of Existing Notes may be withdrawn at any
time prior to the Expiration Date. See "The Exchange
Offer--Withdrawal of Tenders."
FEDERAL INCOME
TAX CONSIDERATIONS: The exchange of the Existing Notes for New Notes
will not constitute a taxable event for United
States Federal income tax purposes. As a result,
holders of the New Notes will not recognize any
taxable gain or loss on such exchange and such
holders will have the same tax basis and holding
period in the New Notes as they had in the Existing
Notes immediately prior to the Exchange Offer. See
"Federal Income Tax Considerations."
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<PAGE>
EXCHANGE AGENT: State Street Bank & Trust Company, N.A. is serving
as the Exchange Agent in connection with the
Exchange Offer. See "The Exchange Offer--Exchange
Agent."
INFORMATION AGENT: Kissell Blake, Inc. is serving as the information
agent (the "Information Agent") in connection with
the Exchange Offer. See "The Exchange
Offer--Information Agent."
REMAINING EXISTING NOTES: Holders of Existing Notes who do not tender their
Existing Notes in the Exchange Offer or whose
Existing Notes are not accepted for exchange will
continue to hold such Existing Notes and will be
entitled to all the rights and preferences, and will
be subject to the limitations applicable thereto
under the Indenture. All untendered and tendered but
unaccepted Existing Notes (collectively, the
"Remaining Existing Notes") will continue to bear
legends restricting their transfer. In general, the
Existing Notes may not be offered or sold, unless
registered under the Securities Act, except pursuant
to an exemption from, or in a transaction not
subject to, the Securities Act and applicable state
securities laws. To the extent that the Exchange
Offer is effected, the trading market, if any for
Remaining Existing Notes could be adversely
affected. See "Risk Factors--Failure to Exchange
Existing Notes" and "The Exchange Offer."
THE NEW NOTES The Exchange Offer applies to $150.0 million
aggregate principal amount of the Existing Notes.
The form and terms of the New Notes are the same as
the form and terms of the Existing Notes for which
they may be exchanged pursuant to the Exchange Offer
except that the New Notes will have been registered
under the Securities Act and, therefore, the New
Notes will not bear legends restricting transfer
thereof. The New Notes, like the Existing Notes
(which they replace), will not be guaranteed, will
evidence the same indebtedness as the Existing Notes
and will be entitled to the benefits of the
Indenture. See "Description of Senior Notes" for
further information and "--Certain Definitions" for
definitions of certain capitalized terms used below.
MATURITY October 27, 2007
INTEREST Interest on the New Notes will be payable
semi-annually in cash at a rate of 14% per annum, on
April 27 and October 27 of each year, commencing on
April 27, 1998.
PROCEEDS PLEDGE AND
ESCROW AGREEMENT ICCA has used approximately $57.3 million of the net
proceeds of the Initial Offering to purchase a
portfolio of securities that are pledged and
escrowed in an account under the Trustee's exclusive
dominion and control for the payment of interest on
the Existing Notes and New Notes through October 27,
2000 and, under certain circumstances, as security
for repayment of principal of the Existing Notes and
New Notes. $69.3 million of the net proceeds of the
Initial Offering has been pledged and escrowed as
security for all
12
<PAGE>
obligations of ICCA under the Existing Notes and New
Notes and the Indenture and has been deposited in an
account under the Trustee's exclusive dominion and
control pending application of such funds by ICCA
for the payment of (a) Permitted Expenditures, (b)
in the event of a Change of Control, the Change of
Control Payment and (c) in the event of a Special
Offer to Purchase or a Special Mandatory Redemption,
the purchase or redemption price in connection
therewith.
In the event that on or after October 27, 2000
Collateral Funds remain in the Collateral Account,
each holder of New Notes will have the right to
require ICCA to repurchase all or any part of such
holder's New Notes at an offer price in cash equal
to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase;
provided that, if after the Special Offer to
Purchase is consummated at least $20.0 million in
aggregate principal amount of Existing Notes and New
Notes do not remain outstanding, ICCA will be
required by the terms of the Indenture to redeem all
of the Existing Notes and New Notes at a redemption
price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to
the date of purchase. See "Description of Senior
Notes--Proceeds Pledge and Escrow Agreement."
OPTIONAL REDEMPTION The New Notes will be redeemable at the option of
the Company, in whole or in part, at any time on or
after October 27, 2002, at the redemption prices set
forth herein plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of
redemption. In addition, at the option of ICCA, up
to 331/3% of the aggregate principal amount of New
Notes may be redeemed at any time on or prior to
October 27, 2000 at a redemption price of 114% of
the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any,
thereon to the redemption date, with the net cash
proceeds received by ICCA after the date of the
Indenture from the issuance and sale of its
Qualified Capital Stock to the public in a
registered public offering or to one or more
Strategic Equity Investors to the extent that such
net cash proceeds have been, and continue to be,
designated as Designated Equity Proceeds to be used
for such purpose as provided in the definition
thereof; provided that at least 662/3% of the
original aggregate principal amount of the Existing
Notes and New Notes remain outstanding immediately
after the occurrence of each such redemption and
provided, further, that such redemption occurs
within 45 days of the date of the closing of any
such public offering or sale to such Strategic
Equity Investors.
CHANGE OF CONTROL In the event of a Change of Control, holders of the
New Notes will have the right to require ICCA to
purchase their New Notes, in whole or in part, at a
price equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and
Liquidated
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<PAGE>
Damages, if any, thereon, to the date of repurchase.
See "Risk Factors--Risks Related to Change of
Control Provision."
RANKING The New Notes will rank senior in right of payment
to all subordinated indebtedness of ICCA, if any,
incurred in the future. The New Notes will rank
equal in right of payment to all senior indebtedness
of ICCA, if any, incurred in the future. The New
Notes will be secured by a first priority pledge
pursuant to the Proceeds Pledge and Escrow
Agreement. All of the operations of ICCA are
conducted through its subsidiaries and, therefore,
ICCA is dependent upon the cash flow of its
subsidiaries to meet its obligations, including its
obligations under the New Notes. The obligations
under the New Notes will be effectively subordinated
to all indebtedness and other liabilities and
commitments (including trade payables and lease
obligations) of ICCA's subsidiaries. Any right of
ICCA to receive assets of any of its subsidiaries
upon the latter's liquidation or reorganization (and
the consequent right of the holders of the Existing
Notes and New Notes to participate in those assets)
will be effectively subordinated to the claims of
that subsidiary's creditors, except to the extent
that ICCA is itself recognized as a creditor of such
subsidiary, in which case the claims of ICCA would
still be subordinate to any security in the assets
of such subsidiary and to any indebtedness of such
subsidiary senior to that held by ICCA. As of March
31, 1998, ICCA's subsidiaries had approximately
$548,000 of indebtedness and $3.5 million of trade
payable and other liabilities outstanding. In
addition, under the Indenture, ICCA's subsidiaries
are permitted to incur certain additional
Indebtedness, the terms of which may restrict the
ability of its subsidiaries to pay dividends to
ICCA. See "Description of Senior Notes--Certain
Covenants--Incurrence of Indebtedness and Issuance
of Preferred Stock" and "Risk Factors--Holding
Company Structure; Inability to Access Cash Flow."
COVENANTS The Indenture pursuant to which the New Notes will
be issued will contain certain covenants that, among
other things, limit the ability of ICCA and its
subsidiaries to incur additional Indebtedness and
issue preferred stock, pay dividends or make other
distributions, repurchase Equity Interests or
subordinated Indebtedness, engage in sale or
leaseback transactions, create certain liens, enter
into certain transactions with affiliates, sell
assets of ICCA or its subsidiaries, issue or sell
Equity Interests of ICCA or its subsidiaries or
enter into certain mergers and consolidations. In
addition, under certain circumstances, holders of
the New Notes will have the right to require ICCA to
offer to purchase New Notes at a price equal to 100%
of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, to
the date of purchase, with the proceeds of certain
Asset Sales. See "Description of Senior Notes."
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<PAGE>
NO CASH PROCEEDS TO THE COMPANY
This Exchange Offer is intended to satisfy certain obligations of the
Company under the Registration Rights Agreement. The Company will not receive
any proceeds from the issuance of the New Notes offered hereby and has agreed
to pay the expenses of the Exchange Offer. In consideration for issuing the New
Notes as contemplated in this Prospectus, the Company will receive, in
exchange, the Existing Notes representing an equal aggregate principal amount
at maturity. The form and terms of the New Notes are identical in all material
respects to the form and terms of the Existing Notes, except as otherwise
described herein under "The Exchange Offer--Terms of the Exchange Offer." The
Existing Notes surrendered in exchange for New Notes will be retired and
canceled and cannot be reissued. Accordingly, issuance of the New Notes will
not result in any increase in the outstanding indebtedness of the Company. See
"Use of Proceeds."
RISK FACTORS
An investment in the New Notes involves a high degree of risk. Prospective
investors of the New Notes should consider all of the information contained in
this Prospectus before exchanging their Existing Notes pursuant to the Exchange
Offer. In particular, prospective investors should consider the factors set
forth herein under "Risk Factors."
PRESENTATION OF FINANCIAL INFORMATION
INTERAMERICAS COMMUNICATIONS CORPORATION
The consolidated financial statements of ICCA and its subsidiaries have
been prepared in accordance with generally accepted accounting principles in
the United States ("U.S. GAAP").
The financial statements of subsidiaries outside the United States are
prepared using the local currency as the functional currency. Assets and
liabilities of these subsidiaries are translated at the rate of exchange at the
balance sheet date. The resultant translation adjustments are included in
equity as cumulative translation adjustments, a separate component of
stockholders' equity. Income and expense items are translated at average
monthly rates of exchange. Gains and losses from foreign currency transactions
of these subsidiaries are included in the statement of operations.
The Company has restated its December 31, 1997 and 1996 financial
statements to reflect the effect of revising the price per share of Company
common stock issued in connection with the May 1996 acquisition of Resetel from
$2.25 to $5.99 per share. The revised price per share is based on the average
closing price of the Company's common stock for the period of 14 days before
and after the date the terms of the acquisition were announced. The previously
recorded purchase price was based on the Company's March 1996 private
placement. The effect of the change in price per share increased the reported
purchase price from approximately $2,800,000 to $7,500,000. The effect of the
restatement on (1) the Company's annual statements of operations, related to
increased amortization expense, was to increase net loss by $136,000 and
$234,000, resulting in a net loss of $4,762,000 and $15,866,000 for the years
ended December 31, 1996 and 1997, respectively (2) on the Company's
stockholders' equity, related to the increased purchase price, was to increase
additional paid in capital by $4,675,000, resulting in additional paid in
capital of $23,168,000 and $31,562,000 as of December 31, 1996 and 1997,
respectively and (3) on the Company's net basic and diluted loss per share,
related to increased amortization expense of $0.01 per share, resulting in net
basic and diluted loss per share of $0.32 and $0.95 for the years ended
December 31, 1996 and 1997. The related impact on the interim March 31, 1998
unaudited financial statements was to increase net loss by $58,000, increase
additional paid in capital by $4,675,000 and increase net basic and diluted
loss per share by $0.01.
15
<PAGE>
FIRSTCOM LONG DISTANCE
The financial statements of FirstCom Long Distance (such statements,
together with the notes thereto, being referred to herein as the "FirstCom
Financial Statements") have been prepared in accordance with generally accepted
accounting principles in Chile ("Chilean GAAP"). Chilean GAAP varies in certain
significant respects from U.S. GAAP, Note 30 to the FirstCom Long Distance
Financial Statements contained elsewhere in this Prospectus provides a
description of the principal differences between Chilean GAAP and U.S. GAAP as
they relate to FirstCom Long Distance.
Chilean GAAP requires that the financial statements be restated to reflect
the full effects of loss in the purchasing power of the Chilean Peso on the
operations of FirstCom Long Distance. See Notes 2 and 4 to the FirstCom Long
Distance Financial Statements contained elsewhere in this Prospectus. For
comparative purposes, the FirstCom Long Distance Financial Statements and the
amounts disclosed in the related notes for the year ended December 31, 1996
have been restated in terms of Chilean Pesos based on December 31, 1997
purchasing power. In accordance with Chilean regulations and accounting
practices, the restatement was calculated based on the official Consumer Price
Index of the National Institute of Statistics of Chile, which was 6.3% for the
year ended November 30, 1997. Balances in U.S. dollars included in the FirstCom
Long Distance balance sheet for the years ended December 31, 1996 and 1997 have
been translated at the "Observed Exchange Rate" as determined by the Central
Bank of Chile using the exchange rates of Ch$424.87, and Ch$439.18, per US $1,
respectively.
References herein to "U.S. dollars" or "U.S. $" are to the lawful currency
of the United States. References herein to Chilean "Pesos" or "Ch$" are to the
lawful currency of Chile. Amounts may be expressed in thousands of constant
Chilean Pesos ("ThCh$") or thousands of US dollars ("ThUS$"). With respect to
FirstCom Long Distance, this Prospectus contains translations of certain
Chilean Pesos amounts into U.S. dollars at specified rates solely for the
convenience of the reader. These translations should not be construed as
representations that the peso amounts actually represent such U.S. dollar
amounts or could be converted into U.S. dollar amounts at the rate indicated.
Unless otherwise indicated, such U.S. dollar amounts have been translated from
Chilean Pesos at an exchange rate at December 31, 1997 of Ch$439.18 per US $1,
as reported by Banco de Chile (the "Chilean Central Bank"). See "Exchange Rate
Data."
16
<PAGE>
SUMMARY CONDENSED CONSOLIDATED HISTORICAL AND
PRO FORMA COMBINED FINANCIAL DATA
The following table sets forth summary condensed consolidated historical
and pro forma combined financial data of the Company. The summary condensed
consolidated historical statement of operations data for the years ended
December 31, 1994, 1995, 1996 and 1997 were derived from the consolidated
financial statements of the Company which were audited by
PricewaterhouseCoopers LLP, independent certified public accountants.
The summary condensed unaudited pro forma combined statements of
operations for the year ended December 31, 1997 gives effect to the Senior Note
Offering and the FirstCom Long Distance Acquisition as if it had occurred at
the beginning of 1997. The FirstCom Long Distance Acquisition is accounted for
under the purchase method of accounting. The summary condensed consolidated
historical statement of operations data for the three months ended March 31,
1998 and 1997 and balance sheet data as of March 31, 1998 were derived from the
unaudited consolidated financial statements of the Company, which are included
elsewhere in this Prospectus and which in the opinion of management of the
Company, include all adjustments, consisting only of normal recurring
adjustments necessary for a fair presentation of the results of such unaudited
interim periods. The statement of operations data for the three months ended
March 31, 1998 are not necessarily indicative of results of operations that may
be expected for future periods or for the year ended December 31, 1998.
The information contained in this table should be read in conjunction with
"Selected Historical Financial Data" and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and the financial statements
including the notes thereto appearing elsewhere in this Prospectus.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
----------------------------------------------------------------------- -----------------------
(AS RESTATED)
PRO FORMA
1994 1995 1996(1) 1997(1) 1997 1997 1998
----------- ------------- --------------- --------------- ------------- ----------- -----------
(AS RESTATED) (AS RESTATED) (UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Sales .......................... $ 34 $ 224 $ 652 $ 1,130 $ 11,145 $ 324 $ 3,327
Operating expenses ............. (2,207) (2,722) (5,145) (11,722) (23,098) (1,410) (4,963)
-------- --------- -------- ---------- --------- -------- --------
Loss from operations ........... (2,173) (2,498) (4,493) (10,592) (11,953) (1,086) (1,636)
Other income (expense) ......... (45) (56) (23) 1,247 662 18 1,761
Interest expense ............... (313) (319) (246) (6,521) (25,411) (215) (5,403)
-------- --------- -------- ---------- --------- -------- --------
Net loss ..................... $ (2,531) $ (2,873) $ (4,762) $ (15,866) $ (36,702) $ (1,283) $ (5,278)
======== ========= ======== ========== ========= ======== ========
Net basic and diluted loss
per share ...................... $ (1.30) $ (0.31) $ (0.32) $ (0.95) $ (2.20) $ (0.08) $ (0.28)
Weighted average shares
outstanding .................... 1,952 9,407 14,796 16,668 16,668 16,153 19,084
CASH FLOWS:
Cash used in operating
activities ................... $ (489) $ (2,150) $ (3,934) $ (4,889) $ (1,002) $ (1,788)
Cash used in investing
activities ................... (2,049) (1,170) (2,968) (127,482) (742) (49)
Cash provided by financing
activities ................... 2,649 3,263 7,570 146,584 2,054 (1,671)
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
AT DECEMBER 31, AT MARCH 31,
1997 1998
---------------- --------------
(AS RESTATED) (AS RESTATED)
(UNAUDITED)
BALANCE SHEET DATA:
<S> <C> <C>
Cash and cash equivalents .................... $ 14,936 $ 11,428
Restricted cash and investments(2) ........... 118,920 113,206
Total assets ................................. 176,936 172,689
Convertible debentures ....................... 1,550 --
Current portion of lease obligations ......... 313 233
Long-term debt and lease obligations .......... 131,982 132,106
Total stockholders equity ..................... 31,927 26,649
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------------------------
PRO FORMA
1994 1995 1996(1) 1997(1) 1997
------------ ------------ --------------- --------------- -------------
(AS RESTATED) (AS RESTATED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
OTHER FINANCIAL DATA:
EBITDA(3) ............................. $ (2,097) $ (2,102) $ (3,651) $ (9,391) $ (9,927)
Depreciation and amortization ......... 76 396 842 1,201 2,013
Capital expenditures .................. 1,849 720 1,453 763
Ratio of earnings to fixed
charges(4) .......................... -- -- -- -- --
Deficiency of earnings to cover
fixed charges ....................... (2,531) (2,873) (4,762) (15,866) (36,702)
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------------
1997 1998
----------- ------------
(AS RESTATED)
(UNAUDITED)
<S> <C> <C>
OTHER FINANCIAL DATA:
EBITDA(3) ............................. $ (808) $ (1,113)
Depreciation and amortization ......... 278 523
Capital expenditures .................. 392 5,762
Ratio of earnings to fixed
charges(4) .......................... -- 0.07x
Deficiency of earnings to cover
fixed charges ....................... (1,283) (5,278)
</TABLE>
- ---------------
(1) Historical financial data includes the operations of Red de Servicios
Empresariales de Telecommunicaciones, S.A. ("Resetel"), acquired on May 7,
1996, and FirstCom Networks, S.A., formerly Hewster Chile, S.A. ("FirstCom
Networks"), acquired on July 31, 1996, from their respective dates of
acquisition. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
(2) Restricted cash and investments represent proceeds from the Initial
Offering that will be disbursed in accordance with the terms of the
Indenture relating to the Existing Notes. See "Description of Senior Notes
--Proceeds Pledge and Escrow Agreement."
(3) "EBITDA" represents income (loss) from operations before interest, taxes,
depreciation and amortization. EBITDA is presented because it is commonly
used in the telecommunications industry to measure operating performance,
asset value and financial leverage. However, EBITDA should not be
considered as an alternative to net income as a measure of operating
results, cash flows or as a measure of liquidity in accordance with
generally accepted accounting principles. Also, EBITDA as defined herein
may not be comparable to similarly entitled measures reported by other
companies.
(4) In calculating the ratio of earnings to fixed charges, earnings consist of
net loss prior to income taxes and fixed charges. Fixed charges consist of
interest expensed and capitalized and amortization of debt issuance costs.
18
<PAGE>
RISK FACTORS
Prospective purchasers of the New Notes offered hereby should consider
carefully the following risk factors, as well as the other information
contained in this Prospectus, before purchasing the New Notes offered hereby.
RISKS RELATING TO FORWARD-LOOKING STATEMENTS
Certain statements contained in this Prospectus including, without
limitation, statements containing the words "believes," "anticipates,"
"intends," "expects," "projects," and words of similar import constitute
forward-looking statements within the meaning of the federal securities laws,
including the Private Securities Litigation Reform Act of 1995. Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors that may cause the actual results, performance or achievements of
the Company or industry results to be materially different from any future
results, performance or achievements expressed or implied by such
forward-looking statements. Such factors include, among others, the following:
general national and international economic and business conditions, as well as
conditions in the regions in which the Company operates; demographic change;
existing government regulations and changes in, or the failure to comply with,
government regulations; competition; the loss of any significant customers;
changes in business strategy or development plans; technological developments;
the ability to attract and retain qualified personnel; the significant
indebtedness of the Company; the availability and terms of capital to fund the
expansion of the Company's business; and other factors referenced in this
Prospectus. Each of these factors is, to a large extent, subject to economic,
financial, competitive, regulatory and other factors, many of which are beyond
the Company's control. Certain of these factors are discussed in more detail
elsewhere in this Prospectus including, without limitation, under the captions
"Prospectus Summary;" "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and "Business." Given these uncertainties,
prospective investors are cautioned not to place undue reliance on such
forward-looking statements.
SUBSTANTIAL LEVERAGE
The Company is highly leveraged and has substantial debt service
requirements. As of March 31, 1998, the Company has approximately $132.0
million of total long-term Indebtedness and the Company has stockholders'
equity of $26.6 million. In addition, in each year since its inception, the
Company's earnings have been inadequate to cover its fixed charges by a
substantial amount. The Company's earnings were inadequate to cover its fixed
charges by $4.8 million and $15.9 million, respectively, for the years ended
December 31, 1996 and 1997. On a pro forma basis after giving effect to the
consummation of the FirstCom Long Distance Acquisition, for the year ended
December 31, 1997 the Company's earnings would have been inadequate to cover
its fixed charges by $36.7 million. The Company's annual interest obligations
under the Existing Notes and New Notes substantially exceeds the Company's
sales for the year ended December 31, 1997.
ABILITY TO SERVICE INDEBTEDNESS
The ability of ICCA to make scheduled payments with respect to its
indebtedness, including the Existing Notes and New Notes, will depend upon (i)
its ability to implement its business plan, to expand its operations and to
successfully develop its customer base in its target markets, (ii) the ability
of ICCA's subsidiaries to remit cash to ICCA in a timely manner and (iii) the
future operating performance of ICCA and its subsidiaries. The Company expects
that it will continue to generate cash losses for the foreseeable future. No
assurance can be given that the Company will be successful in developing and
maintaining a level of cash flow from operations sufficient to permit it to pay
the principal of, and interest on, its indebtedness, including the Existing
Notes and New Notes. If the Company is unable to generate sufficient cash flow
from operations to service its indebtedness, including the Existing Notes and
New Notes, it may have to modify its growth plans, restructure or refinance its
indebtedness or seek additional capital. There can be no assurance that (i) any
of these
19
<PAGE>
strategies could be effected on satisfactory terms, if at all, in light of the
Company's high leverage or (ii) any such strategy would yield sufficient
proceeds to service the Company's indebtedness, including the Existing Notes
and New Notes. See "--Historical and Anticipated Operating Losses," and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources."
The Company's high level of indebtedness imposes substantial risks to
holders of the New Notes, including the following: (i) the ability of the
Company to pay interest and Liquidated Damages, if any, on, and the redemption
price of or the principal amount at maturity of, the Existing Notes and New
Notes when due may be impaired; (ii) the Company's ability to obtain additional
financing in the future for working capital, capital expenditures, acquisitions
or general corporate purposes may be impaired; (iii) a substantial portion of
the Company's cash flow from operations must be dedicated to service its
indebtedness and will not be available for capital expenditures and other
purposes in furtherance of the Company's strategic growth objectives, and the
failure of the Company to generate sufficient cash flow to service such
indebtedness could result in a default under such indebtedness; (iv) the
Indenture contains restrictions on the Company's ability to pay dividends or to
repurchase securities and imposes numerous other operating and financing
restrictions, the failure to comply with which may result in a default under
the Indenture; (v) the Company is more highly leveraged than many of its
competitors which may place it at a competitive disadvantage; (vi) the
Company's high degree of leverage could make it more vulnerable to adverse
changes in its business and in general economic conditions; and (vii) the
ability of the Company to satisfy its obligations under its indebtedness will
be dependent upon risks, uncertainties and contingencies affecting the business
and operations of the Company, many of which are beyond the control of the
Company, such as general economic conditions, the entry of new competitors in
the Company's markets and the introduction of new technology. The Indenture
limits, but does not prohibit, the incurrence of additional Indebtedness by
ICCA and its subsidiaries. See "Description of Senior Notes--Certain
Covenants--Incurrence of Indebtedness and Issuance of Preferred Stock" and
"--Dividend and Other Payment Restrictions Affecting Subsidiaries."
HOLDING COMPANY STRUCTURE; INABILITY TO ACCESS CASH FLOW
Substantially all of ICCA's assets are held by its subsidiaries and all of
ICCA's operating revenues are derived from the operations of such subsidiaries.
Future acquisitions may be made through present or future subsidiaries of ICCA.
Accordingly, ICCA's ability to pay the principal of, and interest and
Liquidated Damages, if any, when due, on the Existing Notes and New Notes is
dependent upon the earnings of its subsidiaries and the distribution of
sufficient funds from its subsidiaries. ICCA's subsidiaries will have no
obligation, contingent or otherwise, to make any funds available to ICCA for
payment of the principal of, and interest and Liquidated Damages, if any, on
the Existing Notes and New Notes. In addition, the ability of ICCA's
subsidiaries to make such funds available to ICCA may be restricted by the
terms of such subsidiaries' current and future indebtedness, the availability
of such funds and the applicable laws of the jurisdictions under which such
subsidiaries are organized. Furthermore, ICCA's subsidiaries will be permitted
under the terms of the Indenture to incur certain additional indebtedness that
may severely restrict or prohibit the making of distributions, the payment of
dividends or the making of loans by such subsidiaries to ICCA. The failure of
ICCA's subsidiaries to pay dividends or otherwise make funds available to ICCA
could have a material adverse effect upon ICCA's ability to satisfy its debt
service requirements including its ability to make payments on the New Notes.
RANKING
The obligations under the New Notes will be effectively subordinated to
all indebtedness and other liabilities and commitments (including trade
payables and lease obligations) of ICCA's subsidiaries. Any right of ICCA to
receive assets of any of its subsidiaries upon the latter's liquidation or
reorganization (and the consequent right of the holders of the New Notes to
participate in those assets) will be effectively subordinated to the claims of
that subsidiary's creditors, except to the extent that ICCA is itself
recognized as a creditor of such subsidiary, in which case the claims of ICCA
would still be
20
<PAGE>
subordinate to any security in the assets of such subsidiary held by any
creditor and any indebtedness of such subsidiary senior to that held by ICCA.
As of March 31, 1998, ICCA's subsidiaries had approximately $548,000 of
indebtedness and $3.5 million of trade payables and other liabilities
outstanding. In addition, under the Indenture, ICCA's subsidiaries will be
permitted to incur certain additional indebtedness, the terms of which may
restrict the ability of such subsidiaries to pay dividends to ICCA. See
"Description of Senior Notes--Certain Covenants--Incurrence of Indebtedness and
Issuance of Preferred Stock" and "--Dividend and Other Payment Restrictions
Affecting Subsidiaries."
HISTORICAL AND ANTICIPATED OPERATING LOSSES
The Company has never generated positive cash flow from consolidated
operations and, since its inception, has incurred significant net operating
losses and negative cash flow. As of March 31, 1998, the Company had an
accumulated deficit of $31.0 million. Since inception through March 31, 1998,
the Company's operations have resulted in EBITDA of $(18.6) million. On a pro
forma basis, after giving effect to the consummation of the FirstCom Long
Distance Acquisition, the Company would have had EBITDA of ($9.9) million for
the year ended December 31, 1997. For the years ended December 31, 1996 and
1997 and the three months ended March 31, 1988, the Company incurred a net loss
of $4.8 million, $15.9 million and $5.3 million, respectively, and generated
negative cash flow from operations of $3.9 million, $5.9 million and $738,000,
respectively. The Company expects to continue to incur significant operating
losses and negative cash flow from operations for at least the next several
years in connection with establishing its local networks and implementing its
business plan. There can be no assurance that the Company's networks or any of
its other services will ever provide a revenue base adequate to achieve or
sustain profitability or to generate positive cash flow and the failure to do
so would have a material adverse effect on the Company's ability to satisfy its
debt service requirements, including the New Notes, and may adversely impact
the price of the Common Stock.
SIGNIFICANT FUTURE CAPITAL REQUIREMENTS
Expansion of the Company's existing networks and services and the
development of new networks and services will require significant capital
expenditures, the amount of which the Company is presently unable to predict.
The Company expects to use the net proceeds of the Initial Offering to meet its
capital expenditure requirements. See "Use of Proceeds." Although the Company
believes that the proceeds of the Initial Offering are sufficient to fund its
current plans, actual capital expenditures may vary significantly from the
Company's estimates depending on a number of factors, many of which are beyond
the Company's control, including the pace and extent of network upgrade and
expansion, the magnitude of potential acquisitions, investments or the impact
of strategic alliances, and levels of incremental sales and regulatory actions,
which, individually or collectively, could cause material changes in the
Company's capital expenditure requirements.
The Company may need additional capital to (i) finance its anticipated
growth, (ii) fund working capital needs and future debt service obligations,
(iii) take advantage of unanticipated opportunities, including more rapid
international expansion, acquisitions of customer bases or businesses or
investments in, or strategic alliances with, companies that are complementary
to the Company's current operations, (iv) develop or expand into new services
or (v) otherwise respond to unanticipated competitive pressures. The Company
currently expects to obtain such additional capital, if necessary, through
internally generated cash flow and from offerings of additional debt or equity
securities. There can be no assurance, however, that the Company will be
successful in producing sufficient internally generated cash flow or raising
sufficient capital on terms acceptable to the Company, if at all. Moreover, the
amount of, and the terms and conditions of the instruments relating to, the
Company's current outstanding indebtedness may adversely affect the Company's
ability to raise additional capital. Failure to internally generate or raise
sufficient funds may require the Company to delay, abandon or reduce the scope
of any potential future expansion, which could have a material adverse effect
on the Company's business, financial condition and results of operations.
21
<PAGE>
LIMITED OPERATING HISTORY
The Company acquired its principal operations in Santiago, Chile in July
1994 and in Lima, Peru in May 1996, and has limited experience in operating its
business. The Company has not commenced operations in any other country.
Prospective investors therefore have limited historical financial and operating
information about the Company upon which to base an evaluation of the Company's
performance and an investment in the New Notes.
ENTRANCE INTO NEWLY OPENING MARKETS
The Company's viability, profitability and growth depend upon the
successful implementation of its business plan. A significant portion of the
Company's business plan includes the acquisition or formation of new local
operators in markets where it currently does not have operations and, in many
of its existing and future markets, offering services that have historically
been provided only by PTTs. Accordingly, the Company may face delays and
problems inherent in establishing a new business in an evolving industry,
including, among other things, hiring experienced and qualified personnel.
Other risks associated with the Company's business plan include: (i) securing
necessary licenses and adhering to regulatory requirements relating thereto;
(ii) obtaining any required zoning variances or other governmental or local
regulatory approvals; and (iii) other risks typically associated with any
business venture, such as unanticipated cost increases and the ability to
effectively implement its business strategy. There can be no assurance that the
implementation of the Company's business plan will be successful. The failure
to successfully implement its business plan would have a material adverse
effect on the Company and on the value of the Common Stock and may affect the
Company's ability to satisfy its debt service requirements, including the New
Notes.
RISKS ASSOCIATED WITH IMPLEMENTATION OF GROWTH STRATEGY
The Company has a limited operating history and rapid growth by the
Company could place a strain on its management, operating and financial
resources. In addition, while the Company is currently a provider of
telecommunications services in Peru and Chile, the Company will, on an ongoing
basis, explore opportunities to provide additional telecommunications services
in Latin America. The Company's ability to manage growth and expansion
effectively will require continued implementation of, and improvements to, its
operating and financial systems and will require the Company to expand, train
and manage its employee base. Furthermore, the ability of the Company to expand
its operations will, among other things, depend upon its ability to identify
acquisitions in the future, or, if identified, to arrive at price and terms
which are attractive to the Company and may also depend on consents from third
parties, including regulatory authorities. Although the Company believes that
it has made adequate allowances for the costs and risks associated with future
growth and expansion, there can be no assurance that the Company's systems,
procedures or controls or financial resources will be adequate to support the
Company's operations, that management will be able to keep pace with such
growth and/or expansion, and that the Company will be able to successfully
consummate future acquisitions on terms acceptable to the Company, or at all.
If the Company is unable to manage growth and/or expansion effectively, the
Company's business, operating results and financial condition and its ability
to generate sufficient cash flow to service its indebtedness, including the New
Notes, will be materially and adversely affected which would also adversely
affect the value of the Common Stock.
RISKS RELATED TO POTENTIAL FUTURE ACQUISITIONS
The Company intends in the future to pursue acquisitions of complementary
services, technologies or businesses, although the Company has no present
understandings, commitments or agreements with respect to any such acquisitions
except as described in this Prospectus. Future acquisitions by the Company
could result in potentially dilutive issuances of equity securities, the
incurrence of debt and contingent liabilities and an increase in amortization
expenses related to goodwill and other intangible assets, which could have a
material adverse effect upon the Company's business, financial condition and
results of operations. Acquisitions involve numerous risks, including
difficulties in the assimilation of
22
<PAGE>
the operations, technologies, services and products of the acquired companies
and the diversion of management's attention from other business concerns.
UNCERTAINTY OF MARKET ACCEPTANCE; POTENTIAL LACK OF SUBSCRIBER DEMAND
The Company's success is subject to a number of business, economic,
regulatory and competitive factors, many of which are beyond the Company's
control, including the extent to which prospective subscribers will use the
Company's services. The Company's ability to service its indebtedness,
including the Existing Notes and New Notes, is subject to the successful
implementation of its growth strategy which, in turn, is premised, among other
things, on the Company's expectation that demand for its current services will
increase significantly in its existing markets and that there will be strong
demand for services introduced by the Company in the future. The Company has
only recently begun providing telecommunications services in Peru. Subscriber
demand for the Company's services in the markets in which it currently operates
and in those in which it expects to operate is uncertain. See "--Competition"
and "--Rapid Industry and Technological Change." Failure to gain market
acceptance for, or subscriber demand of, current or planned services would have
a material adverse effect on the Company. In addition, the Company has incurred
and will continue to incur significant operating expenses and has made, and
will continue to make, significant capital investments. Accordingly, any
material miscalculation by the Company with respect to its strategy or business
plan is likely to have a material adverse effect on the Company. See
"--Significant Future Capital Requirements" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations."
CONSTRUCTION RISKS
The operating companies in which the Company invests may require
substantial construction of new, or additions to existing, network systems.
Construction activity may require the Company to obtain qualified
subcontractors, the availability of which varies significantly from country to
country. Construction projects are subject to overruns and delays not within
the control of the Company or its subcontractors, such as those caused by
government entities, financing delays and catastrophic occurrences. Delays also
can arise from design changes and material or equipment shortages or delays in
delivery. Services to buildings can be delayed if the operating companies or
their subcontractors have difficulty in obtaining easements from private
parties. Failure to complete construction on a timely basis could jeopardize a
system's subscriber contracts, franchises and licenses or the Company's ability
to preempt its competition.
FAILURE TO EXCHANGE EXISTING NOTES
The New Notes will be issued in exchange for Existing Notes only after
timely receipt by the Exchange Agent of such Existing Notes, a properly
completed and duly executed Letter of Transmittal and all other required
documents. Therefore, holders of Existing Notes desiring to tender such
Existing Notes in exchange for New Notes should allow sufficient time to ensure
timely delivery. Neither the Exchange Agent nor the Company is under any duty
to give notification of defects or irregularities with respect to tenders of
Existing Notes for exchange. Existing Notes that are not tendered or are
tendered but not accepted will, following consummation of the Exchange Offer,
continue to be subject to the existing restrictions upon transfer thereof. In
addition, any holder of Existing Notes who tenders in the Exchange Offer for
the purpose of participating in a distribution of the New Notes will be
required to comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any resale transaction. Each
broker-dealer that receives New Notes for its own account in exchange for
Existing Notes, where such Existing Notes were acquired by such broker-dealer
as a result of market-making activities or any other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such New Notes. See "Plan of Distribution." To the extent that Existing Notes
are tendered and accepted in the Exchange Offer, the trading market for
untendered and tendered but unaccepted Existing Notes could be adversely
affected. See "The Exchange Offer."
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DISCRETIONARY USE OF FUNDS
The Company expects to use the net proceeds of approximately $142.5
million from the Initial Offering as follows: (i) $62.0 million to expand and
operate the Company's fiber optic network in Peru and Chile; (ii) up to $7.2
million to consummate the Iusatel Acquisition; (iii) $2.9 million to redeem the
Convertible Debentures; (iv) $1.5 million to pay existing short-term
liabilities of the Company, including outstanding bank debt and trade payables;
(v) $975,000 to pay indebtedness under the bridge notes; and (vi) the remaining
amounts for general corporate purposes. The Indenture requires the Company to
allocate at least 60% of the aggregate amount of Collateral Funds released from
the Collateral Account for Permitted Expenditures in connection with
Acquisition Costs or Systems Costs directly related to the Company's
telecommunications businesses in Peru. The Company cannot predict in which, if
any, of its existing or future development opportunities it will ultimately
invest. While the Company currently expects to use the proceeds of the Initial
Offering as set forth above, if the Company does not invest in these projects
or invests a different amount than currently anticipated, subject to the terms
of the Indenture and the Proceeds Pledge and Escrow Agreement, the Company
would use any remaining cash to fund other development projects and/or
acquisitions and for general corporate purposes. See "Use of Proceeds."
Pursuant to the Proceeds Pledge and Escrow Agreement, the Company
deposited $69.3 million of the net proceeds in an account under the Trustee's
exclusive dominion and control pending application of such funds by the Company
for the payment of (i) Permitted Expenditures; (ii) in the event of a Change of
Control, the Change of Control Payment and (iii) in the event of a Special
Offer to Purchase or a Special Mandatory Redemption, the purchase or redemption
price in connection therewith. In the event that on or after October 27, 2000,
Collateral Funds remain in the Collateral Account, each holder of Existing
Notes and New Notes will have the right to require the ICCA to repurchase all
or any part of such holder's Existing Notes and New Notes at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase; provided that, if after the Special Offer to Purchase is consummated
at least $20.0 million in aggregate principal amount of the Existing Notes and
New Notes does not remain outstanding, ICCA will be required by the terms of
the Indenture to redeem all of the Existing Notes and New Notes at a redemption
price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the date
of purchase. See "Description of Senior Notes--Proceeds Pledge and Escrow
Agreement."
After the consummation of the Special Offer to Purchase, the Company shall
apply all funds held in the Collateral Account not previously released pursuant
to the terms of the Indenture and the Proceeds Pledge and Escrow Agreement, at
its option, to the acquisition of a controlling interest in a Permitted
Business, making of a capital expenditure or acquisition of other assets, in
each case, in a Permitted Business or to the reduction of senior Indebtedness
of ICCA or Indebtedness of any of its Restricted Subsidiaries.
COMPETITION
The international telecommunications industry is highly competitive. The
Company's success depends upon its ability to compete with a variety of other
telecommunications providers in each of its markets, including global alliances
among some of the world's largest telecommunications carriers, PTTs, wireless
telephone companies and microwave carriers. Other existing and potential
competitors include cable television companies, railway companies, electric
companies and other utilities with rights-of-way and large end-users which have
private networks. The intensity of such competition has recently increased and
the Company believes that such competition will continue to intensify as the
number of new market entrants increases. Many of the Company's existing and
potential competitors have substantially greater financial, marketing and other
resources than the Company. If the Company's competitors devote significant
additional resources to the provision of telecommunications services to the
Company's target customer base, such action would have a material adverse
effect on the Company's business, financial condition and/or results of
operations. There can be no assurance that the Company will be able to compete
successfully against such existing and potential competitors.
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Competition for customers in the telecommunications industry is primarily
based on price and, to a lesser extent, on the type and quality of services
offered. The Company has no control over the prices set by its competitors, and
some of the Company's competitors may be able to use their financial resources
to cause severe price competition. Any such price competition would have a
material adverse effect on the Company's business, financial condition and
results of operations. Additionally, intensified competition in certain of the
Company's markets may cause the Company to reduce its prices, which may reduce
the Company's revenue and margins. See "Business--Business and
Services--Chile--Competition" and "--Peru--Competition."
RAPID INDUSTRY AND TECHNOLOGICAL CHANGE
The international telecommunications industry is changing rapidly due to,
among other things, deregulation, privatization of PTTs, technological
improvements, expansion of telecommunications infrastructure and the
globalization of the world's economies and free trade. In addition, the
telecommunications industry is in a period of rapid technological evolution.
The Company is unable to predict which of the many possible future product and
service offerings will be important to establish and maintain a competitive
position in or what expenditures will be required to develop and provide such
products and services. The Company's future financial performance will depend,
in part, upon its ability to anticipate and adapt to rapid regulatory and
technological changes occurring in the telecommunications industry and upon its
ability to offer, on a timely basis, services that meet evolving industry
standards. There can be no assurance that the Company will be able to adapt to
such technological changes or offer such services on a timely basis or
establish or maintain a competitive position. There can be no assurance that
one or more of these factors will not vary unpredictably, which could have a
material adverse effect on the Company. In addition, there can be no assurance,
even if these factors turn out as anticipated, that the Company will be able to
implement its strategy or that its strategy will be successful in this rapidly
evolving market.
DEPENDENCE UPON NETWORK INFRASTRUCTURE; RISK OF SYSTEM FAILURE; SECURITY RISKS
The Company's success in marketing its services to business and government
users requires that the Company provide adequate reliability, capacity and
security via its network infrastructure. The Company's networks are subject to
physical damage, power loss, capacity limitations, software defects and
breaches of security (by computer virus, break-ins or otherwise), all of which
may cause interruptions in service or reduced capacity for customers.
Interruptions in service, capacity limitations or security breaches could have
a material adverse effect on the Company's business, financial condition and
results of operations.
YEAR 2000 CONCERNS
The Company believes that it has prepared its computer systems and related
software to accommodate data sensitive information relating to the Year 2000.
The Company expects that any additional costs related to ensuring such systems
and software to be Year 2000-compliant will not be material to the financial
condition or results of operations of the Company. In addition, the Company is
discussing with its vendors and customers the possibility of any difficulties
which may affect the Company as a result of its vendors and customers ensuring
that their computer systems and software are Year 2000-compliant. To date, no
significant concerns have been identified. However, there can be no assurance
that no Year 2000 related computer operating problems or expenses will arise
with the Company's computer systems and software or in the computer systems and
software of the Company's vendors and customers.
GOVERNMENT REGULATORY RESTRICTIONS
National and local laws and regulations differ significantly among the
countries in which the Company currently operates and plans to operate. The
interpretation and enforcement of such laws and
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regulations vary and could limit the Company's ability to provide certain
telecommunications services. Furthermore, there can be no assurance that
changes in current or future laws or regulations or future judicial
intervention would not have a material adverse effect on the Company. In
addition, the Company's strategy is based in large part upon the expected
deregulation of the telecommunications markets in various countries throughout
Latin America. There can be no assurance that any such countries will proceed
with the expected deregulation on schedule, or at all, or that the trend
towards deregulation will not be stopped or reversed. There may be significant
resistance to the implementation of such legislation from PTTs, regulators,
trade unions and other sources. These and other potential obstacles to
deregulation would have a material adverse effect on the Company's operations
and growth. See "Business--Regulation."
DEPENDENCE ON RIGHTS-OF-WAY AND OTHER THIRD PARTY AGREEMENTS
The Company also must obtain easements, rights-of-way, franchises and
licenses (collectively, "local approvals") from various private parties, actual
and potential competitors and local governments in order to construct and
maintain its fiber optic networks. The Company does not yet have all of the
approvals required to implement its network business plan in prospective new
markets, and there can be no assurance that the Company will be able to obtain
and maintain approvals on acceptable terms or that other service providers will
not obtain similar approvals that will allow them to compete against the
Company or enter a market before the Company. Some of the agreements for
approvals obtained by the Company may be short-term or revocable at will, and
there can be no assurance that the Company will have continued access to
approvals after their expiration. If any of these agreements were terminated or
could not be renewed and the Company was forced to remove its fiber optic cable
or abandon its network in place, such termination or non-renewal would have a
material adverse effect on the Company's business, results of operations and
financial condition.
DEPENDENCE UPON LOCAL TELECOMMUNICATIONS PROVIDERS
The Company is dependent upon incumbent local exchange companies to
provide telecommunications services to the Company and its customers. The
Company has from time to time experienced delays in receiving
telecommunications services, and there can be no assurance that the Company
will be able to obtain such services on the scale and within the time frames
required by the Company at an affordable cost, or at all. Any failure to obtain
such services or additional capacity on a timely basis at an affordable cost,
or at all, would have a material adverse effect on the Company's business,
financial condition and results of operations.
DEPENDENCE ON KEY PERSONNEL
The Company is managed by a small number of key executive officers and
operating personnel, including Patricio E. Northland, the Company's Chairman,
President and Chief Executive Officer, and Douglas G. Geib II, the Company's
Chief Financial Officer, the loss of certain of whom could have a material
adverse effect on the Company and the ability of the Company to fulfill its
financial obligations, including, without limitation, those under the Existing
Notes and New Notes. The Company believes that its future success will depend
in large part on its continued ability to attract and retain skilled and
qualified personnel with experience in the telecommunications industry. Such
employees are in great demand and are often subject to competing offers of
employment. The Company has not obtained disability or life insurance policies
covering its key executive officers.
COUNTRY RISKS
GENERAL. The Company has invested significant resources in Latin America
and intends to continue to make such investments in Latin America in the
future. Accordingly, the Company may be subject to economic, political or
social instability or other developments not typical of investments made in the
United States. Such events could adversely affect the financial condition and
results of operations of the Company, the ability of the Company to repay the
Existing Notes and New Notes and the market
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value and liquidity of the Units, Existing Notes and New Notes, Warrants and/or
Warrant Shares. During the past several years, countries in Latin America in
which the Company operates or plans to operate have been characterized by
varying degrees of inflation, uneven growth rates and political uncertainty.
The Company currently does not have political risk insurance in the countries
in which it conducts business. While the Company carefully considers these
risks when evaluating investment opportunities and seeks to mitigate these and
other risks by diversifying its operations in a number of Latin American
countries, there is no assurance that the Company will not be materially
adversely affected as a result of such risks.
CURRENCY RISKS AND EXCHANGE CONTROLS. Although ICCA's subsidiaries have
attempted, and will continue to attempt, to match costs and revenues and
borrowings and repayments in terms of their respective local currencies,
payment for a majority of purchased equipment has been, and may continue to be,
required to be made in currencies, including US dollars, other than local
currencies. In addition, the value of ICCA's investment in a subsidiary is
partially a function of the currency exchange rate between the US dollar and
the applicable local currency. In general, the Company does not execute hedge
transactions to reduce its exposure to foreign currency exchange rate risks.
Accordingly, the Company may experience economic loss and a negative impact on
earnings with respect to its holdings solely as a result of foreign currency
exchange rate fluctuations, which include foreign currency devaluations against
the dollar. The countries in which ICCA's subsidiaries now conduct business
generally do not restrict the removal or conversion of local or foreign
currency; however, there can be no assurance that this situation will continue.
See Management's Discussion and Analysis of Financial Condition and Results of
Operations--Inflation and Exchange Rates" and "Business--Regulation--
Peru--Foreign Investment and Exchange Controls" and "--Chile--Foreign
Investment and Exchange Controls."
DEPENDENCE ON LOCAL ECONOMIES; INFLATION. The Company's operations depend
upon the economies of the markets in which it operates. These markets include
countries with economies in various stages of development or structural reform,
some of which are subject to rapid fluctuations in terms of consumer prices,
employment levels, gross domestic product and interest and foreign exchange
rates. The Company may be subject to such fluctuations in the local economies
in which it operates. To the extent such fluctuations have an effect on the
ability of subscribers to pay for the Company's service, the growth of the
Company's services in such markets could be impacted negatively. Many of the
countries in which the Company operates, or expects to operate, do not have
established credit bureaus, thereby making it more difficult for the Company to
ascertain the creditworthiness of potential subscribers. Accordingly, the
Company may experience a higher level of bad debt expense than otherwise would
be the case.
Certain of the Company's targeted markets are in countries in which the
rate of inflation is significantly higher than that of the United States. The
Company intends to price its products and services in US dollars to mitigate
any effects of inflation; however, there can be no assurance that any
significant increase in the rate of inflation in such countries could be
offset, in whole or in part, by corresponding price increases by the Company,
even over the long-term. See "Management's Discussion and Analysis of Financial
Condition and Results of Operation--Inflation and Exchange Rates."
IMPORT DUTIES ON EQUIPMENT. The Company's operations are highly dependent
upon the successful and cost-efficient importation of infrastructure equipment
from the United States. In the Latin American markets where the Company
operates or plans to operate infrastructure equipment is subject to significant
import duties and other taxes. Any significant increase in import duties in the
future could have a material adverse effect on the Company's results of
operations.
TAX RISKS ASSOCIATED WITH FOREIGN OPERATIONS. Distributions of earnings
and other payments, including interest, received from ICCA's subsidiaries and
affiliates may be subject to withholding taxes imposed by the jurisdictions in
which such entities are formed or operating, which will reduce the amount of
after-tax cash ICCA can receive from such entities. In general, a United States
corporation may claim a foreign tax credit against its federal income tax
expense for such foreign withholding taxes
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and for foreign income taxes paid directly by foreign corporate entities in
which it owns 10% or more of the voting stock. The ability to claim such
foreign tax credits and to utilize net foreign losses is, however, subject to
numerous limitations, and the Company may incur incremental tax costs as a
result of these limitations or because the Company is not in a tax-paying
position in the United States.
ICCA may also be required to include in its income for United States
federal income tax purposes its proportionate share of certain earnings of
those foreign corporate subsidiaries that are classified as "controlled foreign
corporations" without regard to whether distributions have been actually
received from such subsidiaries. See "Business--Taxation--Peru" and "--Chile."
ENFORCEMENT OF AGREEMENTS. A number of the agreements ICCA enters into
with its non-United States subsidiaries, dealers, subscribers and agents are
governed by the laws of, and are subject to dispute resolution in the courts
of, or through arbitration proceedings in, the country or region in which the
operation is located. The Company cannot accurately predict whether such forum
will provide it with an effective and efficient means of resolving disputes
that may arise in the future. Even if the Company is able to obtain a
satisfactory decision through arbitration or a court proceeding, it could have
difficulty enforcing any award or judgment on a timely basis. The Company's
ability to obtain or enforce relief in the United States is uncertain.
FOREIGN CORRUPT PRACTICES ACT. As a United States corporation, ICCA is
subject to the regulations imposed by the Foreign Corrupt Practices Act (the
"FCPA"), which generally prohibits United States companies and their
intermediaries from making improper payments to foreign officials for the
purpose of obtaining or keeping business. Any determination that the Company
has violated the FCPA would have a material adverse effect on the Company.
CHANGES IN COUNTRY POLICY; CHANGE IN REGULATORY AGENCIES AND POLITICAL
STRUCTURES. The Company has obtained and is seeking to acquire licenses in
countries throughout Latin America and, accordingly, is subject to government
regulation in each market. Much of the Company's planned growth is predicated
upon the liberalization of telecommunications markets. The Company has
confronted, and is likely to continue to confront, changes in government policy
or circumstances that can affect the Company's business and results of
operations. There can be no assurance that such events in the future will not
have a material adverse effect on the Company's results of operations.
The governments of the countries in Latin America vary widely with respect
to structure, constitution and stability. While Latin American governments have
historically exercised extensive influence over their economies, the role of
government has declined as countries have liberalized their political
structures and economies. However, there can be no assurance that future
developments in the government administration of local economies would not
materially and adversely impair the Company's business and financial condition,
the value of the Units, the Existing Notes and New Notes, the Warrants and/or
the Warrant Shares or the Company's ability to pay principal of or interest and
Liquidated Damages, if any, on the Existing Notes and New Notes.
LABOR ISSUES. In most Latin American countries labor unions are considered
to be strong and influential. Accordingly, while none of the Company's
operations are currently unionized, no assurance can be given that the Company
will not encounter strikes or other types of conflicts with labor unions or the
Company's personnel in the Company's markets or that such labor disputes will
not have an adverse effect on the Company. In addition, in response to pressure
by labor unions, many Latin American governments in which the Company targets
operations have, at times, actively regulated cross-border transactions,
including placing limitations on imported goods. Such regulations may result in
delays and increased costs for the Company.
TRANSACTIONS AND RELATIONSHIPS WITH RELATED PARTIES
The Company has engaged in a large number of transactions with its
shareholders, directors, officers and other related parties. There can be no
assurance that the terms of these transactions were
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the same as those that would have resulted from transactions among unrelated
parties. The Indenture restricts the Company's ability to engage in
transactions with related parties. See "Certain Relationships and Related Party
Transactions," "Description of Senior Notes--Certain Covenants--Affiliate
Transactions" and the Report of Independent Certified Public Accountants
contained in the consolidated financial statements of the Company contained
elsewhere in this Prospectus.
ORIGINAL ISSUE DISCOUNT
Because a portion of the purchase price for each Unit issued and sold in
the Initial Offering was allocable to the Warrants included therein for federal
income tax purposes, the Existing Notes and New Notes may be treated as issued
with original issue discount unless such original issue discount is considered
minimal. The New Notes should be treated as a continuation of the Existing
Notes. If original issue discount exists, purchasers of the New Notes therefore
generally will be required to include amounts in gross income for Federal
income tax purposes in advance of receipt of the cash interest payments on the
New Notes to which the income is attributable. See "Federal Income Tax
Considerations" for a more detailed discussion of the federal income tax
consequences to the purchasers of the New Notes resulting from the purchase,
ownership or disposition thereof.
If a bankruptcy case is commenced by or against the Company under Title 11
of the United States Code, as amended (the "Bankruptcy Code"), the claims of a
holder of the Existing Notes and New Notes with respect to the principal amount
thereof may be limited to an amount equal to the sum of (i) the initial
offering price of the Existing Notes and New Notes and (ii) that portion of the
original issue discount that is not deemed to constitute "unmatured interest"
for purposes of the Bankruptcy Code. Any original issue discount that was not
accrued as of such bankruptcy filing may be deemed to constitute "unmatured
interest." A holder of a Senior Note may not have any claim with respect to
that portion of the issue price of a Unit allocated to the Warrant issued as
part of such Unit.
LACK OF DIVIDENDS
ICCA does not anticipate paying dividends on the Common Stock for the
foreseeable future, and the ability of ICCA to make dividend payments on the
Common Stock is restricted by certain covenants in the Indenture. See "Price
Range of Common Stock and Dividend Policy" and "Description of Senior
Notes--Certain Covenants--Restricted Payments."
SHARES ELIGIBLE FOR FUTURE SALE
As of May 14, 1998, ICCA had outstanding 19,084,300 shares of Common
Stock. All of such shares may be sold upon consummation of this Offering
subject to restrictions set forth in Rule 144 ("Rule 144") promulgated under
the Securities Act.
Sales of substantial amounts of Common Stock in the public market under
Rule 144, pursuant to the exercise of registration rights or otherwise, and
even the potential for such sales, may have a material adverse effect on the
prevailing market price of the Common Stock and the Warrants included in the
Units and could impair the Company's ability to raise capital through the sale
of its equity securities.
POSSIBLE ADVERSE EFFECTS OF AUTHORIZATION OF PREFERRED STOCK
ICCA's Articles of Incorporation authorizes the issuance of 10,000,000
shares of preferred stock, par value $.001 per share ("Preferred Stock"), on
terms which may be fixed by the Board of Directors of ICCA without further
shareholder approval. The terms of any series of Preferred Stock, which may
include priority claims to assets and dividends and special voting rights,
could adversely affect the rights of holders of the Existing Notes and New
Notes. The issuance of Preferred Stock, while providing flexibility in
connection with possible acquisitions, financing and other corporate
transactions, could have the effect of preventing or making it more difficult
for a third party to acquire, or of discouraging
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a third party from acquiring, capital stock of ICCA, which may adversely affect
the market price of the New Notes. The Indenture limits the ability of the
Company to issue Preferred Stock. See "Description of Senior Notes--Certain
Covenants--Incurrence of Indebtedness and Issuance of Preferred Stock."
RISKS RELATING TO CHANGE OF CONTROL PROVISION
In the event of a Change of Control, the holders of the Existing Notes and
New Notes will have the right to require ICCA to repurchase all or any portion
of their Existing Notes and New Notes at a price equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon, to the date of repurchase. There can be no assurance
that ICCA will have the financial resources to effect any such repurchase. If
ICCA has the resources to repurchase the Existing Notes and New Notes upon a
Change in Control, such payment may have a material adverse effect on ICCA's
liquidity, results of operations and financial condition. Moreover, ICCA's
repurchase obligation could have the effect of delaying, deferring or
preventing a Change of Control of ICCA and could limit the price that certain
investors might be willing to pay in the future for ICCA's Common Stock. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources" and "Description of the Senior
Notes--Repurchase at the Option of Holders--Change of Control." In addition,
ICCA is a holding company and substantially all of its assets are held by its
subsidiaries and all of ICCA's revenues are derived from the operations of such
subsidiaries. Accordingly, ICCA's ability to pay the principal of, and interest
and Liquidated Damages, if any, on the Existing Notes and New Notes upon a
Change of Control is dependent upon earnings of its subsidiaries and the
distribution of funds from its subsidiaries. See "--Holding Company Structure;
Inability to Access Cash Flow."
Indebtedness of ICCA's subsidiaries and the applicable laws of the
jurisdictions under which ICCA's subsidiaries are organized may restrict ICCA's
current and future subsidiaries from paying any dividends or making any other
distributions to ICCA. Thus, in the event a Change of Control occurs, ICCA
could seek the consent of its subsidiaries' lenders under such Indebtedness to
the purchase of the Existing Notes and New Notes or could attempt to refinance
the borrowings that contain such restrictions. If ICCA did not obtain such a
consent or repay such borrowings or if the applicable laws of the jurisdictions
under which ICCA's subsidiaries are organized restrict such subsidiaries'
ability to pay dividends or make other distributions to ICCA, ICCA would likely
not have the financial resources to purchase Existing Notes and New Notes and
its subsidiaries would be restricted individends to ICCA for the purpose of
such purchase. In addition, any such Indebtedness may prohibit ICCA from
purchasing any Existing Notes and New Notes prior to their maturity, and may
also provide that certain change of control events with respect to ICCA would
constitute a default thereunder. In the event a Change of Control occurs at a
time when ICCA is prohibited from purchasing Existing Notes and New Notes, ICCA
could seek the consent of its lenders to the purchase of Existing Notes and New
Notes or could attempt to refinance the borrowings that contain such
prohibition. If ICCA did not obtain such consent or repay such borrowings, ICCA
would remain prohibited from purchasing Existing Notes and New Notes. In such
event, ICCA would be required to seek to refinance the Existing Notes and New
Notes or such other borrowings, and there can be no assurance that ICCA would
be able to consummate any such refinancing. See "Description of Senior
Notes--Repurchase at the Option of Holders--Change of Control" and
"--Substantial Leverage; Ability to Service Indebtedness."
ABSENCE OF A PUBLIC MARKET FOR THE EXISTING NOTES, NEW NOTES AND WARRANTS
The Existing Notes, New Notes and Warrants are securities for which there
is currently no market. The New Notes will be publicly tradable upon the
effectiveness of this Registration Statement. However, the Existing Notes and
Warrants, which were originally issued and sold by ICAA in a transaction that
was exempt from the registration requirements of the Securities Act, are not
publicly tradable and may be transferred only pursuant to an effective
registration statement filed under the Securities Act or in accordance with an
exemption from the registration requirements of the Securities Act. Although
the Initial Purchaser has informed the Company that it currently intends to
make a
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market in the New Notes, it is not obligated to do so and any such market
making may be discontinued at any time without notice. Accordingly, there can
be no assurance as to the development or liquidity of any market for the New
Notes. The New Notes are expected to be eligible for trading in the PORTAL
market. The Company does not intend to apply for listing of the New Notes on
any securities exchange or for quotation through NASDAQ. If a market for the
New Notes were to develop, the New Notes could trade at prices that may be
higher or lower than their initial offering price depending upon many factors,
including prevailing interest rates, the Company's operating results and the
markets for similar securities.
POSSIBLE SUBORDINATION OR RECOVERY OF PAYMENTS UNDER FRAUDULENT CONVEYANCE LAWS
Under applicable provisions of the Bankruptcy Code or comparable
provisions of state fraudulent transfer or conveyance law, if the Company, at
the time it issued the Existing Notes, (a) incurred such obligation with an
intent to hinder, delay or defraud creditors, or (b)(i) received less than
reasonably equivalent value or fair consideration in respect thereof and
(ii)(A) was insolvent at the time of incurrence, (B) was rendered insolvent by
reason of such incurrence (and the application of the proceeds thereof), (C)
was engaged or was about to engage in a business or transaction for which the
assets remaining with the Company constituted unreasonably small capital to
carry on its business, or (D) intended to incur, or believed that it would
incur, debts beyond its ability to pay such debts as they mature, then, in each
such case, a court of competent jurisdiction could avoid, in whole or in part,
the Existing Notes and New Notes or, in the alternative, subordinate the
Existing Notes and New Notes to existing or future indebtedness of the Company.
The measure of insolvency for purposes of the foregoing will vary depending
upon the law applied in such case. Generally, however, the Company would be
considered insolvent if the sum of its debts, including contingent liabilities,
was greater than all of its assets at fair valuation or if the present fair
saleable value of its assets was less than the amount that would be required to
pay the probable liability on its existing debts, including contingent
liabilities, as they become absolute and matured.
Management believes that, for purposes of the Bankruptcy Code and state
fraudulent transfer or conveyance laws, the Existing Notes and New Notes are
issued without the intent to hinder, delay or defraud creditors and for proper
purposes and in good faith, that the Company will receive reasonably equivalent
value or fair consideration in respect thereof and that the Company, after the
issuance of the Existing Notes and New Notes and the application of the
proceeds thereof, will be solvent, will have sufficient capital for carrying on
its business and will be able to pay its debts as they mature. There can be no
assurance, however, that a court passing on such questions would agree with
management's view.
EFFECT OF BANKRUPTCY ON ABILITY TO REALIZE UPON SECURITY
In order to secure its obligations under the Existing Notes and New Notes,
the Company executed and delivered the Proceeds Pledge and Escrow Agreement.
The Company granted a first priority security interest to the Trustee, for the
benefit of the holders of the Existing Notes and New Notes, in the Pledged
Securities, the Pledge Account, the Collateral Funds and the Collateral
Account. See "Description of Senior Notes."
The proceeds of the Initial Offering constitute "cash collateral" within
the meaning of Section 363(a) of the Bankruptcy Code. If the Company becomes
the debtor in a proceeding under the Bankruptcy Code, the Company could
petition the Bankruptcy Court for permission to use this cash collateral to
finance its operations during the pendency of its bankruptcy case. Bankruptcy
courts are authorized under Section 363 of the Bankruptcy Code to permit such
use if the secured parties consent thereto or if the interests of the secured
parties are "adequately protected". The phrase "adequate protection" is defined
in Section 361 of the Bankruptcy Code, and includes the providing by the debtor
to the secured parties of (i) a cash payment or periodic cash payments; (ii)
the providing of an additional or replacement lien to the extent of the
debtor's use, sale or lease of the secured party's cash collateral; or (iii)
such other relief as will result in the realization of the equivalent of the
secured
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<PAGE>
parties' interests in their cash collateral. A grant of adequate protection,
including an additional or replacement lien, must be authorized and approved by
the bankruptcy court. In authorizing a grant of "adequate protection" to the
secured parties, the court will ordinarily hold an evidentiary hearing to
determine the value of any additional or replacement collateral to be provided
to the secured parties to ensure that such collateral will cover the value of
the secured parties' collateral due to the debtor's use thereof. As a result,
any additional or replacement collateral to be provided to the secured parties
should "adequately protect" the secured parties' interests as determined by the
bankruptcy court; however, no assurance can be given by the Company that the
secured parties will be adequately protected if the bankruptcy court approves
the granting of an additional or replacement lien on the collateral in favor of
the secured parties. Because the granting of an additional or replacement lien
on collateral in favor of the secured parties must be approved by the
bankruptcy court, it is not likely that any such lien obtained by final order
of the bankruptcy court, could be subject to attack in the any bankruptcy case
or proceeding or other court action involving the debtor. See "Description of
Senior Notes."
32
<PAGE>
USE OF PROCEEDS
This Exchange Offer is intended to satisfy certain obligations of the
Company under the Registration Rights Agreement. The Company will not receive
any proceeds from the issuance of the New Notes offered hereby and has agreed
to pay the expenses of the Exchange Offer. In consideration for issuing the New
Notes as contemplated in this Prospectus, the Company will receive, in
exchange, Existing Notes representing an equal aggregate principal amount at
maturity. The form and terms of the New Notes are identical in all material
respects as the form and terms of the Existing Notes, except as otherwise
described herein under "The Exchange Offer--Terms of the Exchange Offer." The
Existing Notes surrendered in the exchange for New Notes will be retired and
canceled and cannot be reissued. Accordingly, issuance of the New Notes will
not result in any increase in the outstanding indebtedness of the Company.
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization
of the Company as of March 31, 1998.
The information contained in this table should be read in conjunction with
"Selected Historical Financial Data" and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and the financial statements
including the notes thereto appearing elsewhere in this Prospectus.
<TABLE>
<CAPTION>
AT MARCH 31,
1998
-----------------------
(DOLLARS IN THOUSANDS)
(UNAUDITED)
<S> <C>
CASH, RESTRICTED BANK DEPOSITS AND ESCROWS:
Cash and cash equivalents .................................................... $ 11,428
Restricted cash and investments .............................................. 113,206
---------
Total cash and restricted cash and investments ............................. $ 124,634
=========
Short-term debt:
Lease obligations ............................................................ 233
---------
Total short-term debt ...................................................... $ 233
=========
Long-term debt:
Existing Notes and New Notes, net of original issue discount ................. $ 131,791
Capital lease obligations .................................................... 315
---------
Total long-term debt ....................................................... $ 132,106
=========
Stockholders' equity:
Preferred Stock, $.001 par value, authorized 10,000,000 shares, none issued .. --
Common Stock, $.001 par value, authorized 50,000,000 shares, 19,084,300
shares issued and outstanding .............................................. $ 19
Additional paid in capital ................................................... 31,562
Outstanding warrants ......................................................... 26,737
Accumulated deficit .......................................................... (31,431)
Cumulative translation adjustments ........................................... (238)
---------
Total stockholders' equity ................................................. $ 26,649
=========
Total capitalization ....................................................... $ 158,755
=========
</TABLE>
33
<PAGE>
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
The Existing Notes were sold by the Company on October 27, 1997 (the
"Closing Date") to the Initial Purchaser pursuant to the Purchase Agreement.
The Initial Purchaser subsequently placed the Existing Notes with qualified
institutional buyers in reliance on Rule 144A and Regulation S under the
Securities Act. As a condition to the sale of the Existing Notes, the Company
and the Initial Purchaser entered into the Registration Rights Agreement on the
Closing Date. Pursuant to the Registration Rights Agreement, the Company agreed
that, unless the Exchange Offer is not permitted by applicable law or
Commission policy, it would (i) file with the Commission a Registration
Statement under the Securities Act with respect to the New Notes within 45 days
after the Closing Date; (ii) use its reasonable best efforts to cause such
Registration Statement to become effective under the Securities Act at the
earliest possible time, but in no event later than 120 days after the Closing
Date; (iii) in connection with the foregoing, file (A) all pre-effective
amendments to the Registration Statement as may be necessary in order to cause
the Registration Statement to become effective, (B) if applicable, a
post-effective amendment to the Registration Statement pursuant to Rule 430A
under the Securities Act and (C) cause all necessary filings in connection with
the registration and qualification of the New Notes to be made under the state
securities laws (the "Blue Sky Laws") as are necessary to meet the consummation
of the Exchange Offer; and (iv) upon effectiveness of the Registration
Statement, to commence the Exchange Offer, maintain the effectiveness of the
Registration Statement for at least 20 business days (or a longer period if
required by law) and deliver to the Exchange Agent New Notes in the same
aggregate principal amount as the Existing Notes that were tendered by holders
thereof pursuant to the Exchange Offer. Further, the Company is expected to use
its reasonable best efforts to cause the Exchange Offer to be consummated on
the earliest practicable date after the Registration Statement becomes
effective, but in no event later than 30 business days thereafter. A copy of
the Registration Rights Agreement has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The Registration
Statement of which this Prospectus is a part is intended to satisfy certain of
the Company's obligations under the Registration Rights Agreement and the
Purchase Agreement.
RESALE OF THE NEW NOTES
ICCA makes the Exchange Offer in reliance on the position of the
Commission's staff as set forth in certain no-action letters issued to other
parties in other transactions. However, the Company has not sought its own
no-action letter and there can be no assurance that the Commission's staff
would make a similar determination with respect to the Exchange Offer as in
such other circumstances. Based on these interpretations of the Commission's
staff, the Company believes that the New Notes issued pursuant to this Exchange
Offer in exchange for Existing Notes may be offered for resale, sold or
otherwise transferred by holders thereof (other than any such holder which is
(i) a broker-dealer who acquired such Existing Notes directly from the Company
for resale pursuant to Rule 144A under the Securities Act or any other
available exemption under the Securities Act or (ii) a person that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that the holder is acquiring the New
Notes in the ordinary course of its business and is not participating, does not
intend to participate, and has no arrangement with any person to participate,
in the distribution of the New Notes. However, if any holder acquires the New
Notes in the Exchange Offer for the purpose of distributing or participating in
the distribution of the New Notes or is a broker-dealer, such holder cannot
rely on the position of the Commission's staff enumerated in certain no-action
letters issued to third parties and must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
resale transaction, unless an exemption from registration is otherwise
available. Each broker-dealer that receives New Notes for its own account in
exchange for Existing Notes, where such Existing Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Notes. The Letter of Transmittal states that by so
34
<PAGE>
acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. This Prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with resales of New Notes
received in exchange for Existing Notes where such Existing Notes were acquired
by such broker-dealer as a result of market-making or other trading activities.
Pursuant to the Registration Rights Agreement, the Company has agreed to make
this Prospectus, as it may be amended or supplemented from time to time,
available to broker-dealers for use in connection with any resale for a period
of 120 days after the Expiration Date. See "Plan of Distribution."
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal, the Company will accept any and all Existing
Notes validly tendered and not withdrawn prior to the Expiration Date. The
Company will issue $1,000 principal amount of New Notes in exchange for each
$1,000 principal amount of outstanding Existing Notes surrendered pursuant to
the Exchange Offer. Existing Notes may be tendered only in integral multiples
of $1,000.
The form and terms of the New Notes are the same as the form and terms of
the Existing Notes for which they may be exchanged pursuant to the Exchange
Offer, except that the New Notes will be registered under the Securities Act
and hence the New Notes will not bear legends restricting their transfer
thereof. The New Notes will evidence the same indebtedness as the Existing
Notes (which they replace) and will be issued under, and be entitled to the
benefits of, the Indenture, which also authorized the issuance of the Existing
Notes, such that both series will be treated as a single class of debt
securities under the Indenture.
As of the date of this Prospectus, $150.0 million aggregate principal
amount of the Existing Notes are outstanding and registered in the name of Cede
& Co., as nominee for the the Depository, in the case of Existing Notes sold
pursuant to Rule 144A, and CEDEL, S.A., in the case of Existing Notes sold
pursuant to Regulation S. Only a registered holder of the Existing Notes (or
such holder's legal representative or attorney-in-fact), as reflected on the
records of the Trustee under the Indenture, may participate in the Exchange
Offer. There will be no fixed record date for determining registered holders of
the Existing Notes entitled to participate in the Exchange Offer.
Holders of the Existing Notes do not have any appraisal or dissenters'
rights under the Indenture in connection with the Exchange Offer. The Company
intends to conduct the Exchange Offer in accordance with the provisions of the
Registration Rights Agreement and the applicable requirements of the Securities
Act, the Exchange Act and the rules and regulations of the Commission
thereunder.
The Company shall be deemed to have accepted validly tendered Existing
Notes when, as and if the Company has given oral or written notice thereof to
the Exchange Agent. The Exchange Agent will act as agent for the tendering
holders of Existing Notes for the purposes of receiving the New Notes from the
Company.
Holders who tender Existing Notes in the Exchange Offer will not be
required to pay brokerage commissions or fees or, subject to the instructions
in the Letter of Transmittal, transfer taxes with respect to the exchange of
Existing Notes pursuant to the Exchange Offer. The Company will pay all charges
and expenses, other than certain applicable taxes described below, in
connection with the Exchange Offer. See "--Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The Exchange Offer will expire at 5:00 p.m., New York City time on ,
1998, unless the Exchange Offer is extended by the Company, in its sole
discretion.
In order to extend the Exchange Offer, the Company will (i) notify the
Exchange Agent of any extension by oral or written notice, (ii) will mail to
the registered holders an announcement thereof,
35
<PAGE>
(iii) will issue a press release or other public announcement which shall
include disclosure of the approximate number of Existing Notes deposited to
date, each prior to 9:00 a.m., New York City time, on the next business day
after the previously scheduled Expiration Date. Without limiting the manner in
which the Company may choose to make a public announcement of any delay,
extension, amendment or termination of the Exchange Offer, the Company shall
have no obligation to publish, advertise, or otherwise communicate any such
public announcement, other than by making a timely release to an appropriate
news agency.
The Company reserves the right, in its sole discretion, (i) to delay
accepting any Existing Notes, (ii) to extend the Exchange Offer, or (iii) if
any conditions set forth below under "--Conditions" shall not have been
satisfied, to terminate the Exchange Offer by giving oral or written notice of
such delay, extension or termination to the Exchange Agent. Any such delay in
acceptance, extension, termination or amendment will be followed as promptly as
practicable by oral or written notice thereof to the registered holders. If the
Exchange Offer is amended in a manner determined by the Company to constitute a
material change, the Company will promptly disclose such amendment by means of
a prospectus supplement that will be distributed to the registered holders, and
the Company will extend the Exchange Offer for a period of five to 10 business
days depending upon the significance of the amendment and the manner of
disclosure to the registered holders, if the Exchange Offer would otherwise
expire during such five to 10 business day period.
INTEREST ON THE NEW NOTES
The New Notes bear interest at a rate equal to 14% per annum. Interest on
the New Notes is payable semi-annually on each April 27 and October 27,
commencing on the first such date following their date of issuance. Holders of
New Notes will receive interest on April 27, 1998 from the date of initial
issuance of the New Notes, plus an amount equal to the accrued interest on the
Existing Notes from the date of initial delivery to the date of exchange
thereof for New Notes. Holders of Existing Notes that are accepted for exchange
will be deemed to have waived the right to receive any interest accrued on the
Existing Notes.
PROCEDURES FOR TENDERING
Only a registered holder of Existing Notes may tender such Existing Notes
in the Exchange Offer. To tender in the Exchange Offer a holder must complete,
sign and date the Letter of Transmittal, or facsimile thereof, have the
signatures thereon guaranteed if required by the Letter of Transmittal, and
mail or otherwise deliver such Letter of Transmittal or such facsimile to the
Exchange Agent at the address set forth below under "--Exchange Agent" for
receipt prior to the Expiration Date. In addition, either (i) certificates for
such Existing Notes must be received by the Exchange Agent along with the
Letter of Transmittal, or (ii) a timely confirmation of a book-entry transfer
(a "Book-Entry Confirmation") of such Existing Notes, if such procedure is
available, into the Exchange Agent's account at the Depository pursuant to the
procedure for book-entry transfer described below, must be received by the
Exchange Agent prior to the Expiration Date, or (iii) the holder must comply
with the guaranteed delivery procedures described below.
The tender by a holder which is not withdrawn prior to the Expiration Date
will constitute an agreement between such holder and the Company in accordance
with the terms and subject to the conditions set forth in herein and in the
Letter of Transmittal.
THE METHOD OF DELIVERY OF EXISTING NOTES AND THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK
OF THE HOLDER. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT HOLDERS USE
AN OVERNIGHT OR HAND DELIVERY SERVICE, PROPERLY INSURED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT
BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR EXISTING NOTES SHOULD
BE
36
<PAGE>
SENT TO THE COMPANY. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS,
COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO EFFECT THE ABOVE TRANSACTIONS
FOR SUCH HOLDERS.
Any beneficial owner(s) of the Existing Notes whose Existing Notes are
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee and who wishes to tender should contact the registered holder
promptly and instruct such registered holder to tender on such beneficial
owner's behalf. If such beneficial owner wishes to tender on such owner's own
behalf, such owner must, prior to completing and executing the Letter of
Transmittal and delivering such owner's Existing Notes, either make appropriate
arrangements to register ownership of the Existing Notes in such owner's name
or obtain a properly completed bond power from the registered holder. The
transfer of registered ownership may take considerable time.
Signatures on a Letter of Transmittal or a notice of withdrawal described
below (see "The Exchange Offer--Withdrawal of Tenders"), as the case may be,
must be guaranteed by a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. a
commercial bank or trust company having an office or correspondent in the
United States or an "eligible guarantor institution" within the meaning of Rule
17Ad-15 under the Exchange Act which is a member of one of the recognized
signature guarantee programs identified in the Letter of Transmittal (an
"Eligible Institution"), unless the Existing Notes tendered pursuant thereto
are tendered (i) by a registered holder who has not completed the box entitled
"Special Delivery Instructions" on the Letter of Transmittal or (ii) for the
account of an Eligible Institution.
If the Letter of Transmittal is signed by a person other than the
registered holder of any Existing Notes listed therein, such Existing Notes
must be endorsed or accompanied by a properly completed bond power, signed by
such registered holder as such registered holder's name appears on such
Existing Notes.
If the Letter of Transmittal or any Existing Notes or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and unless waived by
the Company, evidence satisfactory to the Company of their authority to so act
must be submitted with the Letter of Transmittal.
The Exchange Agent and the Depository have confirmed that any financial
institution that is a participant in the Depository's system may utilize the
Depository's Automated Tender Offer Program to tender Existing Notes.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered Existing Notes will be
determined by the Company in its sole discretion, which determination will be
final and binding. The Company reserves the absolute right to reject any and
all Existing Notes not properly tendered or any Existing Notes the Company's
acceptance of which would, in the opinion of counsel for the Company, be
unlawful. The Company also reserves the right to waive any defects,
irregularities or conditions of tender as to particular Existing Notes. The
Company's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Existing Notes must be cured within such time as the
Company shall determine. Although the Company intends to notify holders of
defects or irregularities with respect to tenders of Existing Notes, neither
the Company, the Exchange Agent nor any other person shall incur any liability
for failure to give such notification. Tenders of Existing Notes will not be
deemed to have been made until such defects or irregularities have been cured
or waived.
While the Company has no present plan to acquire any Existing Notes which
are not tendered in the Exchange Offer or to file a registration statement to
permit resales of any Existing Notes which are not tendered pursuant to the
Exchange Offer, the Company reserves the right in its sole discretion to
37
<PAGE>
purchase or make offers for any Existing Notes that remain outstanding
subsequent to the Expiration Date or, as set forth below under "--Conditions,"
to terminate the Exchange Offer and, to the extent permitted by applicable law,
purchase Existing Notes in the open market, in privately negotiated
transactions or otherwise. The terms of any such purchases or offers could
differ from the terms of the Exchange Offer.
By tendering, each holder will represent to the Company that, among other
things, (i) the New Notes to be acquired by the holder of the Existing Notes in
connection with the Exchange Offer are being acquired by the holder in the
ordinary course of business of the holder, (ii) the holder has no arrangement
or understanding with any person to participate in the distribution of New
Notes, (iii) the holder acknowledges and agrees that any person who is a
broker-dealer registered under the Exchange Act or is participating in the
Exchange Offer for the purposes of distributing the New Notes must comply with
the registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction of the New Notes acquired by
such person and cannot rely on the position of the Commission's staff set forth
in certain no-action letters issued to other parties in other transactions,
(iv) the holder understands that secondary resale transaction described in
clause (iii) above and any resales of New Notes obtained by such holder in
exchange for Existing Notes acquired by such holder directly from the Company
should be covered by an effective registration statement containing the selling
security holder information required by Item 507 or Item 508, as applicable, of
Regulation S-K of the Commission, and (v) the holder is not an "affiliate," as
defined in Rule 405 of the Securities Act, of the Company. If the holder is a
broker-dealer that will receive New Notes for its own account in exchange for
Existing Notes that were acquired as a result of market-making activities or
other trading activities, the holder is required to acknowledge in the Letter
of Transmittal that it will deliver a prospectus in connection with any resale
of such New Notes; however, by so acknowledging and by delivering a prospectus,
the holder will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
RETURN OF EXISTING NOTES
If any tendered Existing Notes are not accepted for any reason set forth
in the terms and conditions of the Exchange Offer or if Existing Notes are
withdrawn or are submitted for a greater principal amount than the holders
desire to exchange, such unaccepted, withdrawn or non-exchanged Existing Notes
will be returned without expense to the tendering holder thereof (or, in the
case of Existing Notes tendered by book-entry transfer into the Exchange
Agent's account at the Depository pursuant to the book-entry transfer
procedures described below, such Existing Notes will be credited to an account
maintained with the Depository) as promptly as practicable.
BOOK-ENTRY TRANSFER
The Exchange Agent will make a request to establish an account with
respect to the Existing Notes at the Depository for purposes of the Exchange
Offer within two business days after the date of this Prospectus, and any
financial institution that is a participant in the Depository's systems may
make book-entry delivery of Existing Notes by causing the Depository to
transfer such Existing Notes into the Exchange Agent's account at the
Depository in accordance with the Depository's procedures for transfer.
However, although delivery of Existing Notes may be effected through book-entry
transfer at the Depository, the Letter of Transmittal or facsimile thereof,
with any required signature guarantees and any other required documents, must,
in any case, be transmitted to and received by the Exchange Agent at the
address set forth below under "The Exchange--Exchange Agent" on or prior to the
Expiration Date or pursuant to the guaranteed delivery procedures described
below.
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<PAGE>
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Existing Notes and (i) whose Existing
Notes are not immediately available or (ii) who cannot deliver their Existing
Notes, the Letter of Transmittal or any other required documents to the
Exchange Agent prior to the Expiration Date, may effect a tender if:
(a) The tender is made through an Eligible Institution;
(b) Prior to the Expiration Date, the Exchange Agent receives from such
Eligible Institution a properly completed and duly executed notice of
guaranteed delivery (the "Notice of Guaranteed Delivery") substantially in the
form provided by the Company (by facsimile transmission, mail or hand delivery)
setting forth the name and address of the holder, the certificate number(s) of
such Existing Notes and the principal amount of Existing Notes tendered,
stating that the tender is being made thereby and guaranteeing that, within
five New York Stock Exchange trading days after the Exchange Date, the Letter
of Transmittal (or a facsimile thereof) together with the certificate(s)
representing the Existing Notes in proper form for transfer or a Book-Entry
Confirmation, as the case may be, and any other documents required by the
Letter of Transmittal will be deposited by the Eligible Institution with the
Exchange Agent; and
(c) Such properly executed Letter of Transmittal (or facsimile thereof),
as well as the certificate(s) representing all tendered Existing Notes in
proper form for transfer and all other documents required by the Letter of
Transmittal are received by the Exchange Agent within five New York Stock
Exchange trading days after the Expiration Date.
Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will
be sent to holders who wish to tender their Existing Notes according to the
guaranteed delivery procedures set forth above.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Existing Notes may be
withdrawn at any time prior to the Expiration Date.
To withdraw a tender of Existing Notes in the Exchange Offer, a written or
facsimile transmission notice of withdrawal must be received by the Exchange
Agent at its address set forth herein prior to the Expiration Date. Any such
notice of withdrawal must (i) specify the name of the person having deposited
the Existing Notes to be withdrawn (the "Depositor"), (ii) identify the
Existing Notes to be withdrawn (including the certificate number or numbers and
principal amount of such Existing Notes), and (iii) be signed by the holder in
the same manner as the original signature on the Letter of Transmittal by which
such Existing Notes were tendered (including any required signature
guarantees). All questions as to the validity, form and eligibility (including
time of receipt) of such notices will be determined by the Company in its sole
discretion, whose determination shall be final and binding on all parties. Any
Existing Notes so withdrawn will be deemed not to have been validly tendered
for purposes of the Exchange Offer and no New Notes will be issued with respect
thereto unless the Existing Notes so withdrawn are validly retendered. Properly
withdrawn Existing Notes may be retendered by following one of the procedures
described above under "--Procedures for Tendering" at any time prior to the
Expiration Date.
CONDITIONS
Notwithstanding any other term of the Exchange Offer, the Company shall
not be required to accept for exchange, or exchange the New Notes for, any
Existing Notes, and may terminate the Exchange Offer as provided herein before
the acceptance of such Existing Notes, if the Exchange Offer violates
applicable law, rule or regulation or an applicable interpretation of the
Commission.
If the Company determines in its sole discretion that any of these
conditions are not satisfied, the Company may (i) refuse to accept any Existing
Notes and return all tendered Existing Notes to the
39
<PAGE>
tendering holders, (ii) extend the Exchange Offer and retain all Existing Notes
tendered prior to the expiration of the Exchange Offer, subject, however, to
the rights of holders to withdraw such Existing Notes (see "The Exchange
Offer--Withdrawal of Tenders") or (iii) waive such unsatisfied conditions with
respect to the Exchange Offer and accept all properly tendered Existing Notes
which have not been withdrawn. If such waiver constitutes a material change to
the Exchange Offer, the Company will promptly disclose such waiver by means of
a prospectus supplement that will be distributed to the registered holders of
the Existing Notes, and the Company will extend the Exchange Offer for a period
of five to 10 business days, depending upon the significance of the waiver and
the manner of disclosure to the registered holders, if the Exchange Offer would
otherwise expire during such five to 10 business day period.
TERMINATION OF CERTAIN RIGHTS
All rights under the Registration Rights Agreement (including registration
rights) of holders of the Existing Notes eligible to participate in this
Exchange Offer will terminate upon consummation of the Exchange Offer except
with respect to the Company's continuing obligations (i) to indemnify the
holders (including any broker-dealers) and certain parties related to the
holders against certain liabilities (including liabilities under the Securities
Act), (ii) to provide, upon the request of any holder of a transfer-restricted
Existing Note, the information required by Rule 144A(d)(4) under the Securities
Act in order to permit resales of such Existing Notes pursuant to Rule 144A,
(iii) to use its best efforts to keep the Registration Statement effective to
the extent necessary to ensure that it is available for resales of
transfer-restricted Existing Notes by broker-dealers for a period of 120 days
from the date on which the Registration Statement is declared effective and
(iv) to provide copies of the latest version of the Prospectus to
broker-dealers upon their request for a period of 120 days from the date on
which the Registration Statement is declared effective; provided, however,
that, if any holder of the Existing Notes notifies ICCA within 20 days of the
consummation of the Exchange Offer: (A) that such holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer,
or (B) that such holder may not resell the New Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such holder, or (C) that such
holder is a broker-dealer and holds Existing Notes acquired directly from the
Company or one of its affiliates, then the Company shall: cause to be filed a
registration statement pursuant to Rule 415 under the Act, which may be an
amendment to the Exchange Offer Registration Statement on or prior to the Shelf
Filing Deadline, which registration statement shall provide for resales of all
Existing Notes. In the event of a Registration Default, the Company is required
to pay Liquidated Damages. See "--Liquidated Damages" and "Description of
Senior Notes--Registration Rights; Liquidated Damages."
LIQUIDATED DAMAGES
In the event of a Registration Default under the Registration Rights
Agreement, the Company is required to pay liquidated damages to each holder of
Transfer Restricted Securities, during the first 90-day period immediately
following the occurrence of such Registration Default in an amount equal to
$0.05 per week per $1,000 principal amount of Existing Notes and New Notes
constituting Transfer Restricted Securities held by such holder for each week
or portion thereof that the Registration Default continues. The amount of the
liquidated damages will increase by an additional $0.05 per week per $1,000
principal amount of Existing Notes and New Notes constituting Transfer
Restricted Securities for each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $0.50
per week per $1,000 principal amount of Existing Notes and New Notes
constituting Transfer Restricted Securities. All accrued liquidated damages
shall be paid to record holders by wire transfer of immediately available funds
or by federal funds check or on each Damages Payment Date as set forth under
the Indenture. Following the cure of all Registration Defaults, the payment of
liquidated damages will cease. The filing and effectiveness of the Registration
Statement of which this Prospectus is a part and the consummation of the
Exchange Offer will eliminate all rights of the holders of Existing Notes
eligible to participate in the Exchange Offer to receive damages that would
have been payable if such actions had not occurred.
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<PAGE>
EXCHANGE AGENT
State Street Bank & Trust Company has been appointed as Exchange Agent in
connection with the Exchange Offer. Questions and requests for assistance,
requests for additional copies of this Prospectus or of the Letter of
Transmittal and requests for Notice of Guaranteed Delivery should be directed
to the Exchange Agent addressed as follows:
<TABLE>
<S> <C>
BY MAIL: BY HAND DELIVERY:
State Street Bank & Trust Company State Street Bank & Trust Company
P.O. Box 778 Corporate Trust Department
Boston, Massachusetts 02102-0078 4th Floor
Attention: Sandra Szczsponik Two International Place
Boston, Massachusetts 02102-0078
BY OVERNIGHT DELIVERY: Attention: Sandra Szczsponik
Corporate Trust Department
BY FACSIMILE:
State Street Bank & Trust Company
4th Floor State Street Bank & Trust Company
Two International Place (617) 664-5232
Attention: Sandra Szczsponik
CONFIRM BY TELEPHONE:
(617) 664-5314
</TABLE>
State Street Bank & Trust Company is an affiliate of the Trustee under the
Indenture.
INFORMATION AGENT
Kissel Blake, Inc. has been appointed as Information Agent in connection
with the Exchange Offer. The Information Agent may contact the holders of
Existing Notes by mail, telephone, telegraph, facsimile and personal interview
and may request brokers, dealers and other nominees for Existing Noteholders to
forward material relating to the Exchange Offer to beneficial owners of
Existing Notes. ICCA will pay the Information Agent reasonable and customary
compensation for all such services in addition to reimbursing the Information
Agent for reasonable out-of-pocket expenses in connection therewith. ICCA has
agreed to indemnify the Information Agent against certain liabilities and
expenses in connection with the Exchange Offer, including, without limitation,
certain liabilities under the federal securities laws. Questions and requests
for assistance may be requested from the Information Agent at the following
address: Kissel-Blake, Inc., 110 Wall Street, New York, New York 10005, Toll
Free Number (800) 554-7733.
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional solicitation
may be made by telegraph, telephone or in person by officers and regular
employees of the Company and its affiliates.
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or others
soliciting acceptances of the Exchange Offer. The Company, however, will pay
the Exchange Agent reasonable and customary fees for its services and will
reimburse it for its reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer
will be paid by the Company and are estimated in the aggregate to be
approximately $250,000. Such expenses include registration fees, fees and
expenses of the Exchange Agent, Trustee and Information Agent, accounting and
legal fees and printing costs, among others.
The Company will pay all transfer taxes, if any, applicable to the
exchange of Existing Notes pursuant to the Exchange Offer. If, however, a
transfer tax is imposed for any reason other than the
41
<PAGE>
exchange of the Existing Notes pursuant to the Exchange Offer, then the amount
of any such transfer taxes (whether imposed on the registered holder or any
other persons) will be payable by the tendering holder. If satisfactory
evidence of payment of such taxes or exemption therefrom is not submitted with
the Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering holder.
CONSEQUENCE OF FAILURE TO EXCHANGE
Participation in the Exchange Offer is voluntary. holders of the Existing
Notes are urged to consult their financial and tax advisors in making their own
decisions on what action to take.
The Existing Notes which are not exchanged for the New Notes pursuant to
the Exchange Offer will remain restricted securities. Accordingly, such
Existing Notes may be resold only (i) to a person whom the seller reasonably
believes is a qualified institutional buyer (as defined in Rule 144A under the
Securities Act) in a transaction meeting the requirements of Rule 144A, (ii) in
a transaction meeting the requirements of Rule 144 under the Securities Act,
(iii) outside the United States to a foreign person in a transaction meeting
the requirements of Rule 904 under the Securities Act or (iv) in accordance
with another exemption from the registration requirements of the Securities Act
(and based upon an opinion of counsel if the Company so requests), (v) to the
Company or (vi) pursuant to an effective registration statement and, in each
case, in accordance with any applicable securities laws of any state of the
United States or any other applicable jurisdiction.
ACCOUNTING TREATMENT
For accounting purposes, the Company will recognize no gain or loss as a
result of the Exchange Offer. The expenses of the Exchange Offer will be
amortized over the term of the New Notes.
42
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The following Unaudited Pro Forma Condensed Combined Statement of
Operations for the year ended December 31, 1997 gives effect to the Senior Note
Offering, the application of proceeds therefrom and the consummation of the
acquisition of FirstCom Long Distance ("FCLD") as if they each had occurred at
the beginning of the relevant period. The FCLD acquisition is accounted for
under the purchase method of accounting.
The Unaudited Pro Forma Condensed Combined Statement of Operations and
accompanying notes should be read in conjunction with the Company's
consolidated financial statements and FCLD's Financial Statements, including
the notes thereto, appearing elsewhere in this Prospectus. The pro forma
statements do not purport to represent what the Company's results of operations
or financial position would actually have been if the aforementioned
transactions or events had occurred on the dates specified or to project the
Company's results of operations or financial position for any future periods or
at any future date. The pro forma adjustments are based upon available
information and certain adjustments that the Company believes are reasonable.
In the opinion of the Company, all adjustments have been made that are
necessary to present fairly the pro forma statements.
43
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
UNAUDITED PROFORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
(IN THOUSANDS OF U.S. DOLLARS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1997
HISTORICAL PRO FORMA PRO FORMA
ICCA FCLD(1) ADJUSTMENTS(2) ICCA
-------------- ----------- ------------------ ------------
(AS RESTATED)
<S> <C> <C> <C> <C>
Sales .............................................. $ 1,130 $ 10,015 $ 11,145
Operating Expenses:
Cost of Sales ..................................... 1,203 6,132 7,335
Selling,general and administrative ................ 9,318 4,432 13,750
Depreciation and amortization ..................... 1,201 504 308 (a) 2,013
--------- -------- --- ---------
Loss from operations ............................... (10,952) (1,053) (308) (11,953)
Other income (expense) ............................. 1,247 (585) 662
Interest expense ................................... (6,521) (410) (18,480)(b) (25,411)
--------- -------- ------- ---------
Net loss ........................................... (15,866) (2,048) (18,788) (36,702)
Net loss per common share .......................... $ (0.95) $ (2.20)
Weighted average common shares outstanding ......... 16,668 16,668
</TABLE>
44
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO UNAUDITED PROFORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
(IN THOUSANDS OF U.S. DOLLARS)
(1) Represents condensed financial information derived from the FCLD
Financial Statements included elsewhere in this Prospectus. The FCLD Financial
Statements have been prepared in accordance with Chilean GAAP. Such financial
statements include, for convenience of the reader, translation of amounts from
Chilean Pesos to U.S. dollars at the exchange rate on December 31, 1997 of
Ch$439.18=US$1.
The information below for FCLD reconciles the Chilean GAAP convenience
translation balances to US GAAP. The US GAPP adjustment column reflects the
principal differences between Chilean GAAP and US GAAP included in Note 30 to
the FCLD Financial Statements' and the translation adjustment column reflects
the impact of remeasuring amounts in accordance with the criteria set forth in
Statement of Financial Accounting Standards No. 52 "Foreign Currency
Translation," using the current rate method of translation, as the Chilean Peso
is considered to be the functional currency and the books and records are
maintained in that currency - under such method all revenues and expenses are
translated using the exchange rate of the transaction date.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1997
-----------------------------------------------------------------------------
US GAAP TRANSLATION
CHILEAN GAAP ADJUSTMENTS ADJUSTMENT US GAAP US GAAP
THCH$ THCH$ THCH$ THCH$ THUS$
---------------- ------------- ------------ ------------- -----------
<S> <C> <C> <C> <C> <C>
Sales ........................................ $ 4,199,618 198,904 4,398,522 10,015
Operating expenses:
Cost of sales ............................... 3,096,099 (524,938) 121,776 2,692,937 6,132
Selling, general and administrative ......... 1,858,229 88,010 1,946,239 4,432
Depreciation and amortization ............... 211,455 10,015 221,470 504
------------ ------- --------- ------
Loss from operations ......................... (966,165) 524,938 (20,897) (462,125) (1,053)
Other income (expense) ....................... (245,380) (11,622) (257,002) (585)
Interest expense ............................. (172,052) (8,149) (180,201) (410)
------------ ------- --------- ------
Net loss ..................................... $ (1,383,597) 524,938 (40,668) (899,327) (2,048)
============ ======== ======= ========= ======
</TABLE>
(2) Represents pro forma adjustments to reflect the Senior Note Offering
and the FCLD acquisition as if both transactions had occurred at the beginning
of the period presented.
<TABLE>
<CAPTION>
FOR THE YEAR ENDED
DECEMBER 31, 1997
-------------------
<S> <C>
(a) Depreciation and amortization represents the amortization of
intangible asset (international telephony license) acquired in the
FCLD acquisition over a 20 year period ............................... $ 308
(b) Interest expense on $150.0 million of Senior Notes at an interest rate
of 14.0% per annum, net of $3,797 of Senior Note interest expense
recognized from October 27, 1997 to December 31, 1997 ................ $ (17,203)
Represents current amortization expense related to deferred financing
costs and original issue discount attribuable to warrants using the
level yield method over a 10 year period ............................. (1,277)
---------
$ (18,788)
</TABLE>
45
<PAGE>
SELECTED HISTORICAL FINANCIAL DATA
ICCA
The selected historical financial data presented below as of December 31,
1995, 1996 and 1997 and for the years ended December 31, 1994, 1995, 1996 and
1997 have been derived from the consolidated financial statements of the
Company which were audited by PricewaterhouseCoopers LLP, independent certified
public accountants. The summary condensed historical statement of operations
data for the year ended December 31, 1993 was derived from unaudited financial
statements of the Company. The summary condensed consolidated historical
statement of operations data for the three months ended March 31, 1998 and 1997
and balance sheet data as of March 31, 1998 were derived from the unaudited
consolidated financial statements of the Company, which are included elsewhere
in this Prospectus and which in the opinion of management of the Company,
include all adjustments, consisting only of normal recurring adjustments
necessary for a fair presentation of the results of such unaudited interim
periods. The statement of operations data for the three months ended March 31,
1998 are not necessarily indicative of results of operations that may be
expected for future periods or for the year ended December 31, 1998. The
selected historical financial data set forth below are qualified in their
entirety by, and should be read in conjunction with, "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and the
consolidated financial statements, including the notes thereto, and other
financial information included elsewhere in this Prospectus.
The Consolidated Financial Statements of the Company have been prepared in
accordance with U.S. GAAP. The financial statements of subsidiaries outside the
United States are prepared using the local currency as the functional currency.
Assets and liabilities of these subsidiaries are translated at the rate of
exchange at the balance sheet date. The resultant translation adjustments are
included as a separate component of stockholders' equity. Income and expense
items are translated at average monthly rates of exchange. Gains and losses
from foreign currency transactions of these subsidiaries are included in the
statement of operations.
INTERAMERICAS COMMUNICATIONS CORPORATION
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
YEAR ENDED DECEMBER 31, (UNAUDITED)
---------------------------------------------------------------------- -----------------------
(AS RESTATED)
1993
(UNAUDITED) 1994 1995 1996 1997 1997 1998
------------- ----------- ------------- --------------- -------------- ----------- -----------
(AS RESTATED) (AS RESTATED)
(AMOUNTS IN THOUSANDS OF DOLLARS, EXCEPT NET LOSS PER COMMON SHARE)
<S> <C> <C> <C> <C> <C> <C> <C>
HISTORICAL OPERATING DATA(1):
Sales .......................... $ -- $ 34 $ 224 $ 652 $ 1,130 $ 324 $ 3,327
Operating expenses ............. (67) (2,207) (2,722) (5,145) (11,722) (1,410) (4,963)
------ -------- --------- -------- ---------- -------- --------
Loss from operations ........... (67) (2,173) (2,498) (4,493) (10,592) (1,086) (1,636)
Interest income and other
expense ...................... (13) (45) (56) (23) 1,247 18 1,761
Interest expense ............... (7) (313) (319) (246) (6,521) (215) (5,403)
--------- -------- --------- -------- ---------- -------- --------
Net loss ..................... $ (87) $ (2,531) $ (2,873) $ (4,762) $ (15,866) $ (1,283) $ (5,278)
======== ======== ========= ======== ========== ======== ========
Net basic and diluted loss
per share .................... $(4.58) $ (1.30) $ (0.31) $ (0.32) $ (0.95) $ (0.08) $ (0.28)
Weighted average shares
outstanding .................. 19 1,952 9,407 14,796 16,668 16,153 19,084
CASH FLOWS:
Cash used in operating
activities ................... $ (126) $ (489) $ (2,150) $ (3,934) $ (4,889) (1,002) (1,788)
Cash used in investing
activities ................... (310) (2,049) (1,170) (2,968) (127,482) (742) (49)
Cash provided by financing
activities ................... 418 2,649 3,263 7,570 146,584 2,054 (1,671)
</TABLE>
46
<PAGE>
<TABLE>
<CAPTION>
AT DECEMBER 31, AT MARCH 31,
---------------------------------- 1998
(AS RESTATED) (UNAUDITED)
1995 1996 1997 (AS RESTATED)
-------- --------- ----------- --------------
<S> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents .................. $ 57 $ 723 $ 14,936 $ 11,428
Restricted cash and investments(2) ......... -- -- 118,920 113,206
Total assets ............................... 4,347 14,893 176,936 172,689
Current debt:
Convertible debentures ..................... -- -- 1,550 --
Lease obligations ......................... 11 114 313 233
Long-term liabilities:
Lease obligations ......................... 210 248 356 315
Existing Notes and New Notes, net ......... 131,626 131,791
Stockholders' equity ...................... 670 12,819 31,927 26,649
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------------------------------
1993 1994 1995 1996 1997
--------- ------------ ------------ --------------- --------------
(AS RESTATED) (AS RESTATED)
<S> <C> <C> <C> <C> <C>
OTHER FINANCIAL DATA:
EBITDA(3) ................................. $ (87) $ (2,097) $ (2,102) $ (3,651) $ (9,391)
Depreciation and amortization ............. -- 76 396 842 1,201
Capital expenditures. ..................... 310 1,849 720 1,453 2,763
Ratio of earnings to fixed charges(4) ..... -- -- -- -- --
Deficiency of earnings to cover
fixed charges ........................... (87) (2,531) (2,873) (4,762) (15,866)
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
(UNAUDITED)
------------------------
(AS RESTATED)
1997 1998
----------- ------------
<S> <C> <C>
OTHER FINANCIAL DATA:
EBITDA(3) ................................. $ (808) $ (1,113)
Depreciation and amortization ............. 278 523
Capital expenditures. ..................... 392 5,762
Ratio of earnings to fixed charges(4) ..... -- 0.07x
Deficiency of earnings to cover
fixed charges ........................... (1,283) (5,278)
</TABLE>
- ---------------
(1) Historical financial data includes the operations of Resetel, acquired on
May 7, 1996, and FirstCom Networks, acquired on July 31, 1996, from their
respective dates of acquisition. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations."
(2) Restricted cash and investments represents proceeds of the Initial Offering
that are to be used for the purchase of telecommunications equipment in
Peru and Chile and for payment of interest on the Existing Notes and New
Notes. See "Description of Senior Notes--Proceeds Pledge and Escrow
Agreement."
(3) "EBITDA" represents loss form operations before interest, taxes,
depreciation and amortization. EBITDA is presented because it is commonly
used in the telecommunications industry to measure operating performance,
asset value and financial leverage. However, EBITDA should not be
considered as an alternative to net income, as a measure of operating
results, cash flows or as a measure of liquidity in accordance with
generally accepted accounting principles. Also, EBITDA may not be
comparable to similarly entitled measures reported by other companies.
(4) In calculating the ratio of earnings to fixed charges, earnings consists of
net loss prior to income taxes and fixed charges. Fixed charges consist of
interest expensed and capitalized and amortization of debt issuance costs.
47
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with
the Company's consolidated financial statements and the notes thereto appearing
elsewhere in this document.
OVERVIEW
GENERAL
The Company is a next generation provider of intelligent telecommunication
services. The Company's mission statement is to be the leading services
provider of high bandwidth integrated telecommunications services to businesses
and other high volume users operating in key Latin American markets, creating
great opportunities for its customers, employees, investors and other partners.
The Company's strategy is to (i) build facilities based fiber optic and
digital switching intelligent networks; (ii) develop strategic relationships
with technology network vendors and developers of Internet-based software; and
(iii) provide end-to-end network solutions to business customers.
Today, the Company is constructing state-of-the-art fiber optic ATM
networks in Santiago, Chile and Lima, Peru. ATM is an information transfer
standard that is one of a general class of packet technologies. ATM can be used
by many different information systems, including local area networks to deliver
traffic at varying rates, permitting a mix of voice, data, video and
multimedia. As of March 31, 1998, the Company had installed approximately (i)
120 kilometers of fiber optic cable through most of Santiago's downtown
business district and the outlying industrial and airport corridor and (ii) 230
kilometers of fiber optic cable through the major commercial and industrial
districts of Lima, and the port city of Callao. During the second and third
quarter of this year the Company intends to substantially complete the
installation of the ATM backbone equipment in both Peru and Chile.
The Company has historically operated as a Latin American
telecommunications development stage company, which has developed its
operations in Latin America through the acquisition of holding and operating
companies that own licenses, concessions or rights-of-way in what the Company
believes to be attractive markets. The following table sets forth the name,
principal market and date of acquisition of each entity acquired by the
Company.
<TABLE>
<CAPTION>
NAME MARKET DATE OF ACQUISITION ACQUISITION PRICE(1)
- ------------------------------------------------------ ---------- --------------------- ---------------------
<S> <C> <C> <C>
Hewster Servicios Intermedios, S.A. ("HSI") .......... Santiago July 15, 1994 $ 9.2 million(2)
Visat, S.A. ("Visat") ................................ Santiago September 23, 1994 1.1 million
Resetel .............................................. Lima May 7, 1996 7.5 million
Hewster, S.A. ("HSA ") ............................... Santiago July 31, 1996 1.5 million
Iusatel Chile, S.A. ("Iusatel") ...................... Santiago December 17, 1997 5.9 million
</TABLE>
- ----------------
(1) The acquisition price represents the purchase price as defined in the
respective stock purchase agreement and excludes any other acquisition
related costs.
(2) The acquisition of HSI was accounted for as a reverse acquisition,
resulting in HSI acquiring the Company, for accounting purposes, and the
recapitalization of HSI.
In Chile the Company operates three wholly owned subsidiaries, FirstCom
Networks (formerly operated by the Company under the names of Hewster Servicios
Intermedios, S.A. and Hewster S.A.), FirstCom Long Distance (formerly Iusatel
Chile S.A.) and Visat S.A. ("Visat").
FirstCom Networks currently provides businesses in Santiago with high
quality voice and data communications services on a private line basis,
including local area network interconnections, remote terminal access, PBX to
PBX connections, remote printing capabilities and high speed access to the
Internet through arrangements with a Chilean based ISP. In addition, FirstCom
Networks provides its
48
<PAGE>
customers with local and wide area network design, engineering, installation,
systems' integration and support services. FirstCom Long Distance provides
domestic and international long distance services. FirstCom Long Distance's
long distance traffic is switched and transported, in part, through its own
gateway switch and satellite earth station, as well as through interconnections
with other Chilean long distance carriers. Visat holds a government concession
to provide intermediate telecommunications services, including the installation
and operation of a network of 12 satellite earth stations and a switch
throughout Chile, which allows the Company to transmit satellite
communications.
In Peru, the Company operates as a wholly owned subsidiary, Red de
Servicios Empresariales de Telecommunicaciones, S.A. ("Resetel"). Upon
completion of its fiber optic network, Resetel intends to aggressively provide
multinational, national and local businesses a broad array of high quality
data, video and voice communication services, including LAN interconnection,
frame relay, remote terminal access and dedicated channels for access to the
Internet, on a private line basis. Resetel intends to expand its existing
service offerings to provide local public switched telephone service upon
liberalization of Peru's telecommunications markets and expiration of
Telefonica del Peru's exclusive concession to provide public switched local and
long distance telephony services, which is scheduled to occur in July 1999.
RESTATED FINANCIAL STATEMENTS AND AMENDED QUARTERLY FINANCIAL INFORMATION
During August 1998, the Company restated its December 31, 1997 and 1996
financial statements to reflect the effect of revising the price per share of
Company common stock issued in connection with the May 1996 acquisition of
Resetel from $2.25 to $5.99 per share. The revised price per share is based on
the average closing price of the Company's common stock for the period of 14
days before and after the date the terms of the acquisition were announced. The
previously recorded purchase price was based on the Company's March 1996
private placement. The effect of the change in price per share increased the
reported purchase price from approximately $2,800,000 to $7,500,000. The effect
of the restatement on (1) the Company's annual statements of operations,
related to increased amortization expense, was to increase net loss by $136,000
and $234,000, resulting in a net loss of $4,762,000 and $15,866,000 for the
years ended December 31, 1996 and 1997, respectively (2) on the Company's
stockholders' equity, related to the increased purchase price, was to increase
additional paid in capital by $4,675,000, resulting in additional paid in
capital of $23,168,000 and $31,562,000 as of December 31, 1996 and 1997,
respectively and (3) on the Company's net basic and diluted loss per share,
related to increased amortization expense of $0.01 per share, resulting in net
basic and diluted loss per share of $0.32 and $0.95 for the years ended
December 31, 1996 and 1997. The related impact on the interim March 31, 1998
unaudited financial statements was to increase net loss by $58,000, increase
additional paid in capital by $4,675,000 and increase net basic and diluted
loss per share by $0.01.
49
<PAGE>
During October 1997 and August 1998 the Company amended certain financial
information as reported on Forms 10-QSB during 1996 and 1997. A summary of the
original and amended unaudited financial information and a description of the
related impact of the Company's statement of operations follows:
<TABLE>
<CAPTION>
(IN THOUSANDS OF U.S. DOLLARS, EXCEPT PER SHARE
DATA)
THREE MONTHS SIX MONTHS NINE MONTHS
ENDED ENDED ENDED
MARCH 31, JUNE 30, SEPTEMBER 30,
1996 1996 1996
-------------- --------------- ---------------
<S> <C> <C> <C>
Revenues ................................. $ 58 $ 113 $ 477
Loss from Operations ..................... (591) (1,646) (2,911)
Net loss, as amended ..................... $ (621) $(1,711) $(2,981)
====== ======= =======
Net basic and diluted loss per
share, as amended ....................... $(0.05) $(0.13) $(0.21)
====== ======= =======
General and administrative
expenses ................................ 247 (a) 247 (a)
Depreciation expense ..................... 110 (a) 240 (a) 240 (a)
Interest expense ......................... 36 (a) 36 (a)
Amortization expenses .................... 64 (c) 122 (c)
------- -------
Net loss, as originally reported ......... $ (511) $(1,124) $(2,336)
====== ======= =======
Net basic and diluted loss per
share, as originally reported ........... $(0.04) $(0.08) $(0.16)
====== ======= =======
<CAPTION>
(IN THOUSANDS OF U.S. DOLLARS, EXCEPT PER SHARE
DATA)
THREE MONTHS SIX MONTHS NINE MONTHS
ENDED ENDED ENDED
MARCH 31, JUNE 30, SEPTEMBER 30,
1997 1997 1997
-------------- --------------- ----------------
<S> <C> <C> <C>
Revenues ................................. $ 324 $ 585 $ 853
Loss from Operations ..................... (1,085) (2,384) (8,574)
Net loss, as amended ..................... $(1,283) $(2,881) $(10,069)
====== ====== =======
Net basic and diluted loss per
share, as amended ....................... $ (0.08) $ (0.18) $ (0.61)
====== ====== =======
General and administrative
expenses ................................
Depreciation expense .....................
Interest expense ......................... 178 (c)
Amortization expenses .................... 58 (b) 116 (c) 176 (c)
------ ------ -------
Net loss, as originally reported ......... $(1,047) $(2,765) $ (9,893)
====== ====== =======
Net basic and diluted loss per
share, as originally reported ........... $ (0.06) $ (0.17) $ (0.61)
====== ====== =======
</TABLE>
- ----------------
(a) Reflects (i) adjustment identified in the fourth quarter of 1996 to provide
depreciation on assets placed in use during the first quarter of 1996,
for which depreciation initially had not commenced until the second
quarter of 1996 and (ii) adjustments for various expenses and costs
identified by the Company in the fourth quarter of 1996 as relating to
earlier 1996 quarters.
(b) Reflects additional interest identified in the fourth quarter of 1997
related to the beneficial conversion feature inherent in the 7%
Convertible Debentures issued in February 1997. Of the total adjustment
of $310, the amount of $132 was capitalized as part of the Company's
fiber optic network.
(c) Reflects the quarterly effect of the Resetel purchase price described in
the introductory language to the above table.
<PAGE>
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1998 COMPARED TO THREE MONTHS ENDED MARCH 31, 1997
DURING DECEMBER 1997 THE COMPANY ACQUIRED FIRSTCOM LONG DISTANCE S.A.
(FORMERLY IUSATEL CHILE S.A.). THE COMPANY'S COMPARATIVE OPERATING RESULTS
DURING THE FIRST QUARTER OF 1998 WAS SIGNIFICANTLY IMPACTED BY THIS ACQUISITION
AS DISCUSSED IN MORE DETAIL BELOW. DURING THE NEXT SIX MONTHS THE COMPANY
INTENDS TO CONTINUE TO BUILD-OUT ITS FIBER OPTIC NETWORKS IN PERU AND CHILE AND
PLANS TO AGGRESSIVELY WIRE MANY OF THE BUILDINGS THAT INCLUDE THE COMPANY'S
TARGETED CUSTOMERS. DURING THE FOURTH QUARTER OF 1998, THE COMPANY BELIEVES IT
WILL BEGIN TO SHOW MARKED INCREASES IN REVENUES GENERATED FROM NETWORK
SERVICES.
REVENUES. The Company's revenues are derived primarily from its operations
in Chile. During the first quarter of 1998 FirstCom Long Distance contributed
approximately 89% of total revenues. The Company expects revenues to increase
over the next few years due to the completion of the Company's ATM fiber optic
networks and the related expansion of its operations in Peru and Chile.
The Company's revenues were $3,327,000 for the three months ended March
31, 1998 as compared to $324,000 for the three months ended March 31, 1997 and
$277,000 for the three months ended December 31, 1997. This increase during the
first quarter of 1998 was due to the acquisition of FirstCom Long Distance.
FirstCom Long Distance generated revenues during the first quarter of
approximately $3.0 million through the sale of approximately 9.2 million
minutes resulting in an average revenue per minute of approximately $.32.
Network revenue during the first quarter of 1998 of $327,000 consisted
primarily of equipment sales and system integration services.
COST OF REVENUES. The Company's cost of revenues is derived primarily from
its operations in Chile. Costs of revenues include both the cost of services
provided and the cost of equipment sold.
50
<PAGE>
During the first quarter of 1998 cost of revenues relate principally to
FirstCom Long Distance and include access charges paid to local exchange
carriers and transmission payments to other carriers. Costs of revenues also
include payments for rights of way related to the Company's fiber optic
networks. The Company anticipates that the cost of revenues will increase with
the expansion of its operations.
The Company's cost of revenues was $2,609,000 for the three months ended
March 31, 1998 as compared to $316,000 for the three months ended March 31,
1997 and $261,000 for the three months ended December 31, 1997. This increase
was attributable to the acquisition of FirstCom Long Distance.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses consist principally of salaries, wages and related
liabilities, professional fees related to legal, recruiting and accounting,
advertising and marketing costs, and travel. The Company expects selling,
general and administrative expenses to increase over time as it continues to
expand its operations.
The Company's selling, general and administrative expenses were $1,831,000
for the three months ended March 31, 1998 as compared to $815,000 for the three
months ended March 31, 1997 and $2,254,000 for the three months ended December
31, 1997. This increase was primarily attributable to the acquisition of
FirstCom Long Distance. At March 31, 1998 the Company had approximately 150
employees compared to 130 employees at December 31, 1997. The Company expects
to increase the number of its employees during the second and third quarters of
this year.
DEPRECIATION AND AMORTIZATION. The Company depreciates its
telecommunications networks and intangible assets over their estimated useful
lives. The Company believes that depreciation and amortization expense will
continue to increase with the expansion of its operations.
The Company's depreciation and amortization expenses were $523,000 for the
three months ended March 31, 1998 as compared to $220,000 for the three months
ended March 31, 1997 and $368,000 for the three months ended December 31, 1997.
This increase was primarily attributable to an increase in depreciation and
amortization expense related to certain assets purchased in the acquisition of
FirstCom Long Distance.
INTEREST EXPENSE. The Company currently incurs interest expense on the
outstanding Senior Notes and capital leases. Interest expense has been reduced
for amounts capitalized related to the Company's construction of its fiber
optic networks. Interest costs reported with respect to the Company's Senior
Notes includes amortization of (i) deferred financing costs and (ii) original
issue discounts related to detachable warrants.
The Company's interest expense was $5,403,000 for the three months ended
March 31, 1998 as compared to $215,000 for the three months ended March 31,
1997 and $4,391,000 for the three months ended December 31, 1997. This increase
was due to a full quarter of financing costs related to the Senior Notes that
were issued on October 21, 1997. Of the total interest costs incurred by the
Company for the three months ended March 31, 1998 and 1997, $206,000 and
$132,000, respectively, of such costs were capitalized in connection with the
Company's construction of its fiber optic network in Lima, Peru.
The Company expects annual interest expense to be at least $22,500,000 in
the future due to the interest payable on Senior Notes and amortization of the
related original issue discount and deferred financing costs.
INTEREST INCOME AND OTHER. The Company currently earns interest income on
cash and cash equivalents, restricted cash, and restricted investments.
The Company's interest income and other was $1,761,000 for the three
months ended March 31, 1998 as compared to $18,000 for the three months ended
March 31, 1997 and $1,267,000 for the three months ended December 31, 1997.
This increase was primarily attributable to an entire quarter of interest
income earned on the Company's restricted cash and investments.
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INCOME TAXES. The Company is subject to federal, state and foreign income
taxes but has incurred no liability for such taxes due to net operating losses
incurred. Under certain circumstances these net operating losses could be used
to offset future taxable income. The Company's net deferred tax assets, which
result primarily from the future benefit of these net operating losses, are
fully offset by a valuation allowance for the same amount because of the
uncertainty surrounding the future realization of these net operating loss
carryforwards. However, as the Company expands its fiber optic networks in
Chile and Peru, the Company expects to generate taxable income. Certain tax
benefits could expire prior to the time the Company generates taxable income.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
SALES. The Company's sales were $1,130,000 for the year ended December 31,
1997 as compared to $652,000 for the year ended December 31, 1996. This
increase of approximately $478,000, was attributable to the inclusion of a full
year of FirstCom Networks' operations, as compared to five months in 1996.
COST OF REVENUES. The Company's cost of revenues, relating principally to
the Company's operations in Chile, was $1,203,000 for the year ended December
31, 1997 as compared to $958,000 for the year ended December 31, 1996. This
increase of approximately $245,000, was attributable to services provided by
FirstCom Networks.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. The Company's selling,
general and administrative expenses were $4,678,000 for the year ended December
31, 1997 as compared to $3,272,000 for the year ended December 31, 1996. This
increase of approximately $1,406,000, was primarily attributable to an increase
in corporate expenses related to salaries, professional fees and travel
attributable to the ongoing support of the Company's subsidiary operations, as
well as corporate development opportunities, and expenses attributable to the
Company's Resetel and FirstCom Networks subsidiaries which were acquired by the
Company in May and July 1996, respectively.
The significant components of selling, general and administrative expenses
were as follows:
<TABLE>
<CAPTION>
1996 1997
----------- ----------
<S> <C> <C>
Compensation ............... 1,202,000 2,775,000
Professional fees .......... 956,000 728,000
Travel ..................... 292,000 254,000
Other ...................... 822,000 921,000
</TABLE>
COMMON STOCK AND STOCK OPTION COMPENSATION. This expense is directly
attributable to the intrinsic value of shares of Common Stock and stock options
issued to certain officers and former directors of the Company during 1997.
Common Stock and stock options were issued to officers to reflect the value
attributable to their services. Common Stock and stock options issued to former
directors were issued to compensate them for services rendered to the Company
pursuant to an agreement signed in October 1997.
DEPRECIATION AND AMORTIZATION. The Company's depreciation and amortization
expenses were $1,201,000 for the year ended December 31, 1997 as compared to
$842,000 for the year ended December 31, 1996. This increase of $359,000 was
primarily attributable to an increase in amortization expense related to the
intangible assets purchased in the acquisitions of Resetel and FirstCom
Networks.
INTEREST EXPENSE. The Company's interest expense was $6,521,000 for the
year ended December 31, 1997 as compared to $246,000 for the year ended
December 31, 1996. This increase of approximately $6,275,000 was due to
additional financing costs related to the Existing Notes and New Notes, the
issuance of convertible debentures in February and May 1997 and the non-cash
charge of $852,000 related to the value of 300,000 shares of common stock
issued to an individual for certain past
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financial assistance provided to the Company. Of the total interest costs
incurred by the Company for the year ended December 31, 1997, $712,000 of such
costs were capitalized in connection with the Company's construction of its
fiber optic network in Lima, Peru.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
SALES. The Company's sales were $652,000 for the year ended December 31,
1996 as compared to $224,000 for the year ended December 31, 1995. This
increase of approximately $428,000, was attributable to additional services
provided by the Company through its HSA subsidiary, which was acquired in July
1996.
COST OF SALES. The Company's cost of sales was $958,000 for the year ended
December 31, 1996 as compared to $408,000 for the year ended December 31, 1995.
This increase of approximately $550,000, was attributable to added costs
associated with the increase in sales discussed above.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. The Company's selling,
general and administrative expenses were $3,272,000 for the year ended December
31, 1996 as compared to $1,906,000 for the year ended December 31, 1995. This
increase of approximately $1,366,000, was primarily attributable to an increase
in corporate expenses related to salaries, professional fees, consulting fees
and travel attributable to the ongoing support of the Company's subsidiary
operations as well as corporate development opportunities, and expenses
attributable to the Company's Resetel and HSA subsidiaries which were acquired
by the Company in May 1996 and July 1996, respectively.
The significant components of selling, general and administrative expenses
were as follows:
<TABLE>
<CAPTION>
1995 1996
--------- ----------
<S> <C> <C>
Compensation ............... 934,000 1,202,000
Professional fees .......... 562,000 956,000
Travel ..................... 111,000 292,000
Other ...................... 299,000 822,000
</TABLE>
DEPRECIATION AND AMORTIZATION. The Company's depreciation and amortization
expenses were $842,000 for the year ended December 31, 1996 as compared to
$396,000 for the year ended December 31, 1995. This increase of $446,000 was
attributable to an increase in amortization expense related to the intangible
assets purchased in the acquisitions of Resetel and HSA, as well as additional
depreciation expense related to the commencement of operations of the Company's
fiber optic network in Chile.
INTEREST EXPENSE. The Company's interest expense was $246,000 for the year
ended December 31, 1996 as compared to $319,000 for the year ended December 31,
1995. This decrease of approximately $73,000, was due to a reduction in the
Company's outstanding indebtedness during 1996.
LIQUIDITY AND CAPITAL RESOURCES
Since inception, the Company has been primarily engaged in start-up
activities requiring substantial expenditures. Consequently, the Company has
reported losses from operations, before interest, of approximately $2.5
million, $4.5 million and $10.6 million for the years ended December 31, 1995,
1996 and 1997, respectively, as well as a loss from operations before interest
of $1.6 million for the three months ended March 31, 1998. In addition, the
Company has reported cash used in investing activities of approximately $1.2
million, $3.0 million and $127.5 million for the years ended December 31, 1995,
1996 and 1997, respectively, as well as cash used in investing activities of
$49,000 for the three months ended March 31, 1998. Cash used in investing
activities related primarily to the purchase of property and equipment and the
acquisitions of Visat, FirstCom Networks and FirstCom Long Distance and the
purchase and use of restricted cash and investments. Further development of the
Company's business and the expansion of its fiber optic networks, service
offerings and customer base will require significant
53
<PAGE>
additional expenditures, and the Company expects that it will have significant
operating losses and net cash outflows from operating and investing activities
through at least 1999.
Since inception, the Company has funded its cash needs through a
combination of private equity and debt placements.
On October 27, 1997, the Company consummated the Senior Note Offering of
150,000 Units consisting of an aggregate of $150.0 million aggregate principal
amount of 14% Existing Notes and New Notes due October 27, 2007 and 5,250,000
Unit Warrants to purchase 5,250,000 shares of Common Stock of the Company at an
exercise price of $4.40 per share. The Unit Warrants entitle the holders
thereof to acquire an aggregate of 5,250,000 shares of Common Stock,
representing approximately 15.1% of the Common Stock of the Company on a fully
diluted basis as of the date of the consummation of the Senior Note Offering
(assuming full vesting and exercise of all options and warrants outstanding at
March 31, 1998), at an exercise price of $4.40 per share. In addition, the
Initial Purchaser of the Units in the Senior Note Offering, was granted
2,250,000 warrants to acquire 2,250,000 shares of Common Stock of the Company
at an exercise price of $4.40 per share.
The net proceeds to the Company from the Senior Note Offering were
approximately $142.5 million, after deducting the underwriting discount and
offering expenses. Approximately $57.3 million of the proceeds were used to
purchase a portfolio of securities that was deposited in escrow for payment of
interest on the Existing Notes and New Notes through October 27, 2000 and,
under certain circumstances, as security for repayment of principal of the
Existing Notes and New Notes.
In addition to the deposit of a portion of the proceeds from the Initial
Offering to fund interest payments on the Existing Notes and New Notes through
October 2000, the Company deposited $62 million of the proceeds from the Senior
Note Offering in a separate account under a trustee's control pending
application of such funds by the Company for the payment of: (a) Permitted
Expenditures; (b) in the event of a Change of Control of the Company, the
Change of Control Payment and (c) in the event of a Special Offer to Purchase,
or a Special Mandatory Redemption, the purchase or redemption price in
connection therewith.
The Company expects to use these proceeds to expand and operate the
Company's telecommunications businesses in Peru and Chile. Under the terms of
the Indenture at least 60% of these funds used by the Company for Permitted
Expenditures must be related to the Company's telecommunications business in
Peru.
The Indenture provides that the Company will not, and will not permit any
of its Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "incur") any Indebtedness (including
Acquired Debt) and that the Company will not issue any Disqualified Stock and
will not permit any of its Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Debt) and the Company may issue shares of Disqualified Stock if the Company's
Debt to Cash Flow Ratio would have been no greater than 5.5 to 1, in the case
of any such incurrence or issuance on or before December 31, 2000, or no
greater than 5.0 to 1, in the case of any such incurrence or issuance at any
time thereafter, in each case, determined on a pro forma basis (including a pro
forma application of the net proceeds thereof), as if the additional
Indebtedness had been incurred, or the Disqualified Stock had been issued, as
the case may be, at the beginning of the applicable four full fiscal quarter
period.
The Indenture also provides that the Company will not incur any
Indebtedness that is contractually subordinated to any other Indebtedness of
the Company unless such Indebtedness is also contractually subordinated to the
Senior Notes on substantially identical terms; provided, however, that no
Indebtedness of the Company shall be deemed to be contractually subordinated to
any other Indebtedness of the Company solely by virtue of being unsecured.The
provisions of this paragraph will not apply to the incurrence of any Permitted
Debt. See "Description of Senior Notes--Incurrence of Indebtedness and Issuance
of Preferred Stock."
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<PAGE>
A summary of the Company's value of Common Stock issued (see (2) below)
and Common Stock and Common Stock equivalents outstanding as of March 31, 1998
and the pro forma effect on the Company's equity capitalization upon the
exercise of all Common Stock equivalents outstanding at March 31, 1998 follows:
<TABLE>
<CAPTION>
STOCK OPTIONS AND WARRANTS OUTSTANDING
AT MARCH 31, 1998
----------------------------------------------------
ACTUAL AT MANAGEMENT OTHER OPTIONS
MARCH 31, AND SENIOR NOTE AND INCREMENTAL
1998 DIRECTORS(4) WARRANTS(5) WARRANTS(6) AS ADJUSTED(7)
---------------- ---------------- ---------------- -------------- ---------------
<S> <C> <C> <C> <C> <C>
Shares of Common Stock ......... 19,084,300 4,995,000 7,500,000 3,195,171 15,690,171
Value of Common Stock
issued(1)(2)
Par Value .................... $ 19,000 $ 4,995 $ 7,500 $ 3,195 $ 15,690
Additional paid in capital 31,562,000 15,206,519 32,992,500 6,927,362 55,126,381
------------ ------------ ------------ ----------- ------------
$ 31,581,000 $ 15,211,514 $ 33,000,000 $ 6,930,557 $ 55,142,071
============ ============ ============ =========== ============
Per share(3) ................... $ 1.65 $ 3.05 $ 4.40 $ 2.17 $ 3.51
</TABLE>
- ----------------
(1) The closing price of the Common Stock on March 31, 1998 was $2.44. The
exercise of stock options and warrants as shown above assumes (i) that the
fair value of the Common Stock is equal to or above the exercise price of
the respective stock options and warrants and (ii) full vesting of all
stock options and warrants.
(2) Value of Common Stock represents the proceeds from the Company's issuance
of Common Stock and Common Stock equivalents, and is comprised of par
value and additional paid in capital, as stated in the Company's
consolidated historical financial statements included elsewhere in this
Prospectus.
(3) Represents the amount in (2) per share of Common Stock.
(4) Represents the increase to the Company's value of Common Stock issued upon
the exercise of all stock options (vested and not vested) held by the
Company's management and directors and the Company's receipt of the
exercise price as of March 31, 1998.
(5) Represents the increase to the Company's value of Common Stock issued upon
the exercise of all warrants (vested and not vested) that were issued in
connection with the Existing Notes and New Notes and are outstanding and
the Company's receipt of the exercise price as of March 31, 1998.
(6) Represents the increase to the Company's value of Common Stock issued upon
the exercise of all other stock options and warrants (vested and not
vested) outstanding and the Company's receipt of the exercise price as of
March 31, 1998 (includes 1,865,000 stock options issued to former officers
and directors).
(7) Represents the combined increase to the Company's value of Common Stock
issued of (4), (5) and (6) above.
As part of its business strategy, the Company intends to continue to
evaluate potential acquisitions, joint ventures and strategic alliances in
companies that own existing networks or companies that provide services that
complement the Company's existing businesses. The Company continues to consider
potential acquisitions from time to time. New sources of capital such as credit
facilities and other borrowings, and additional debt and equity issuances, may
be used to fund such acquisitions and similar strategic investments.
As a result of the Initial Offering, the Company has become highly
leveraged and has substantial debt service requirements. In addition, in each
year since its inception the Company had net losses from operations and
therefore had insufficient earnings to cover its fixed charges. The Company's
annual interest obligations under the Existing Notes and New Notes
substantially exceeds the Company's net income.
The ability of the Company to make scheduled payments with respect to its
indebtedness, including interest on the Existing Notes and New Notes after
October 27, 2000, will depend upon (i) its ability to implement its business
plan, and to expand its operations and to successfully develop its customer
base in its target markets, (ii) the ability of the Company's subsidiaries to
remit cash to the Company in a timely manner and (iii) the future operating
performance of the Company and its subsidiaries. Each of these factors is, to a
large extent, subject to economic, financial, competitive, regulatory and other
factors, many of which are beyond the Company's control. The Company expects
that it will continue to
55
<PAGE>
generate cash losses for the foreseeable future. The Company has deposited in
escrow funds representing interest payments with respect to the Existing Notes
and New Notes through October 2000. However, no assurance can be given that the
Company will be successful in developing and maintaining a level of cash flow
from operations sufficient to permit it to pay the principal of, and the
interest on the Existing Notes and New Notes after such time, or with respect
to its other indebtedness. If the Company is unable to generate sufficient cash
flow from operations to service its indebtedness, including the Existing Notes
and New Notes, it may have to modify its growth plans, restructure or refinance
its indebtedness or seek additional capital. There can be no assurance that (i)
any of these strategies can be effected on satisfactory terms, if at all, in
light of the Company's high leverage or (ii) any such strategy would yield
sufficient proceeds to service the Company's indebtedness, including the
Existing Notes and New Notes. Any failure by the Company to satisfy its
obligations with respect to the Existing Notes and New Notes at maturity or
prior thereto would constitute a default under the Indenture and could cause a
default under other agreements governing current or future indebtedness of the
Company.
Substantially all of the Company's assets are held by its subsidiaries and
substantially all of the Company's sales are derived from operations of such
subsidiaries. Future acquisitions may be made through present or future
subsidiaries of the Company. Accordingly, the Company's ability to pay the
principal of, and interest and liquidated damages, if any, when due, on the
Existing Notes and New Notes is dependent upon the earnings of its subsidiaries
and the distribution of sufficient funds from its subsidiaries. the Company's
subsidiaries will have no obligation, contingent or otherwise, to make funds
available to the Company for payment of the principal of, and interest and
liquidated damages on, if any, the Existing Notes and New Notes. In addition,
the ability of the Company's subsidiaries to make such funds available to the
Company may be restricted by the terms of such subsidiaries' current and future
indebtedness, the availability of such funds and the applicable laws of the
jurisdictions under which such subsidiaries are organized. Furthermore, the
Company's subsidiaries will be permitted under the terms of the Indenture to
incur indebtedness that may severely restrict or prohibit the making of
distributions, the payment of dividends or the making of loans by such
subsidiaries to the Company. The failure of the Company's subsidiaries to pay
dividends or otherwise make funds available to the Company could have a
material adverse effect upon the Company's ability to satisfy its debt service
requirements including its ability to make payments on the Existing Notes and
New Notes.
At March 31, 1998 the Company had $124.6 million of cash and cash
equivalents, restricted cash and restricted investments. The Company believes
its current cash balances should be sufficient to satisfy the Company's
liquidity needs through the end of 1999; however, there can be no assurance
that the Company will have sufficient resources to meet its subsequent
liquidity requirements.
To accelerate its growth rate and to finance the launch or build-out of
additional markets, the Company will consider obtaining financing from various
sources, including vendor financing provided by equipment suppliers, project
financing from commercial banks and international agencies, bank lines of
credit and the sale of equity and debt securities. To the extent that the
Company or any of its subsidiaries issues debt, its leverage and debt service
obligations will increase. There can be no assurance that the Company will be
able to raise such capital on satisfactory terms, if at all. In addition, the
Indenture related to the Existing Notes and New Notes will limit the ability of
the Company and its subsidiaries to incur additional indebtedness.
INFLATION AND EXCHANGE RATES
Inflation and exchange rate variations may have substantial effects on the
Company's results of operations and financial condition. Generally, the effects
of inflation in many Latin American countries, including Chile and Peru, have
been offset in part by a devaluation of the local countries' currencies
relative to the U.S. dollar. Nevertheless, the devaluation of each country's
currency may have an adverse effect on the Company.
A substantial portion of the Company's purchases of capital equipment and
interest on the Existing Notes and New Notes is payable in U.S. dollars. To
date, the Company has not had significant foreign
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<PAGE>
currency exposure with third parties and generally intends to be paid for its
services in U.S. dollars or in local currencies with a pricing adjustment that
is structured to protect the Company against the risk of fluctuations in
exchange rates. As a result, the Company has not entered into foreign currency
hedging transactions. In the future, if third party foreign currency exposure
increases, the Company may enter into hedging transactions in order to mitigate
any related financial exposure. However, a portion of sales to customers of the
Company will be denominated in local currencies, and substantial or continued
devaluations in such currencies relative to the U.S. dollar could have a
negative effect on the ability of customers of the Company to absorb the costs
of devaluation. This could result in the Company's customers seeking to
renegotiate their contracts with the Company or, failing satisfactory
renegotiation, defaulting on such contracts.
In addition, from time to time, Latin American countries have experienced
shortages in foreign currency reserves and restrictions on the ability to
expatriate local earnings and convert local currencies into U.S. dollars. Also,
currency devaluations in one country may have adverse effects in another
country, as in late 1994 and 1995, when several Latin American countries were
adversely impacted by the devaluation of the Mexican peso. Any devaluation of
local currencies in the country where the Company operates, or restrictions on
the expatriation of earnings or capital from such countries, could have a
material adverse effect on the business, results of operations and financial
condition of the Company. See "Risk Factors - Country Risks."
NET OPERATING LOSS CARRYFORWARDS
At December 31, 1997, the Company had net operating loss carry forwards
("NOLs") of approximately $16.1 million for U.S. income tax purposes and
approximately $21.3 million for foreign income tax purposes. These
carryforwards are available to offset future taxable income, if any, and expire
for U.S. income tax purposes in the years 2007 through 2012. The foreign net
operating loss carryforwards related to (1) Peru, $665,000, expire in the years
2000 through 2001 and (2) to Chile, $20.6 million, do not expire.
EFFECTS OF NEW ACCOUNTING STANDARDS
During June 1997, the Financial Accounting Standards Board ( the "FASB")
issued SFAS No. 130, "Reporting Comprehensive Income" and SFAS No. 131
"Disclosures About Segments of an Enterprise and Related Information" effective
for fiscal years beginning after December 1997. Management does not expect
Statements No. 130 and 131 to have a significant impact on the Company's
reporting and disclosure requirements in 1998.
Statement No. 130 establishes standards for reporting and display of
comprehensive income and its components (revenues, expenses, gains and losses)
in a full set of general-purpose financial statements. Statement No. 131
establishes standards for the way that public business enterprises report
information about operating segments in annual financial statements and
requires that those enterprises report selected information about operating
segments in interim financial reports issued to shareholders.
57
<PAGE>
BUSINESS
OVERVIEW
The Company is a new provider of high bandwidth integrated
telecommunications services to high volume users in Santiago, Chile and Lima,
Peru, including business customers and other telecommunications carriers. The
Company believes that the size, expected growth and increasing deregulation of
the telecommunications industry in Latin America offers the Company
considerable opportunities to broaden its existing service offerings and to
expand its recently commenced operations into additional key Latin American
business centers.
Prior to November 1996, the Company operated as a development stage
company whose activities primarily consisted of the acquisition of licenses,
concessions and rights-of way in certain key Latin American markets. Beginning
in November 1996, with the hiring of a new management team, the Company has
focused on the development and operation of high capacity fiber optic networks
in Lima, Peru and Santiago, Chile.
In May 1996, the Company acquired an operating company in Lima, Peru which
holds one of only two local concessions that compete with Telefonica to provide
local private line voice and data services. The Company intends to expand its
existing service offerings to provide local public switched telephony upon the
planned 1999 liberalization of Peru's telecommunications markets. The Company
also intends to apply for a concession to provide public switched long distance
services as regulation permits. The Company currently offers high speed data
transmission services on a private line basis, including area network
interconnection, remote terminal access, dedicated channels for access to the
Internet and voice services on a private line basis. The Company's services are
provided through its 230 kilometer digital fiber optic network in Lima, Peru,
which the Company intends to expand to approximately 400 kilometers. When
completed, the Company's fiber optic network will extend throughout the major
commercial and industrial districts of Lima and the port city of Callao
(combined population of 7.5 million). The Company anticipates substantial
completion of its ATM network in Peru, including last mile connections to
approximately 150 buildings before the end of 1998. The Company believes that
its planned fiber optic network expansion and early implementation of private
line and value-added services prior to the scheduled expiration of Telefonica's
exclusive concession for public switched local and long distance services in
July 1999 will enable the Company to develop a strong customer base and network
presence.
In Chile, the Company currently holds concessions to provide (i) voice and
data transmission services and value-added services on a private line basis and
(ii) public switched domestic and international long distance services. The
Company also maintains a concession to own and operate satellite earth stations
throughout Chile and anticipates being granted in the fourth quarter of 1998 a
concession to provide local public switched telephony services in Santiago. The
Company currently provides similar services to those offered in Peru, as well
as (i) private line remote analog digital telephone access and digital links
for PBX to PBX connections, (ii) local and wide area network design and
engineering and (iii) systems installation, integration and support services.
The Company's services are provided through its 120 kilometer digital fiber
optic network which currently extends through most of Santiago's downtown
business district and the outlying industrial park and airport corridors. With
the completion of last mile connections to approximately 150 buildings,
scheduled for the end of 1998, and approval of a local telephony concession,
the Company believes that it will be able to substantially broaden its product
and service offerings and significantly increase its revenues in Chile.
In December 1997, the Company acquired Iusatel Chile, S.A. (currently
operating under a new name--FirstCom Long Distance S.A.), a company located in
Santiago, Chile, which provides domestic and international long distance
services. FirstCom Long Distance's long distance traffic is switched and
transported, in part, through its own gateway switch and satellite earth
station, as well as through interconnections with other Chilean long distance
carriers. The Company believes that the acquisition of FirstCom Long Distance
will enable the Company to: (i) provide long distance services to its existing
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<PAGE>
corporate customers; (ii) bundle a variety of service offerings, including long
distance and data services, to attract additional customers; and (iii) access
the approximately $178.2 million Chilean international long distance market.
Local and long distance telecommunications revenues in Peru were
approximately $885.5 million in 1996 and are estimated by Pyramid to increase
to approximately $1.9 billion in the year 2000, representing a compound annual
growth rate of 21%. Local and long distance telecommunications revenues in
Chile were approximately $1.1 billion in 1996 and are estimated by the Pyramid
to increase to approximately $2.2 billion in the year 2000, representing a
compound annual growth rate of 16%.
Upon completion of its anticipated upgrades, scheduled for the end of
1998, all of the Company's existing and planned fiber optic networks will
employ ATM transmission technology with centralized network monitoring control
and maintenance. The Company believes its networks allow it to provide its
customers with uniform, reliable, high quality services which are competitive
with or exceed those services provided by former PTTs and other carriers in the
markets in which it operates.
While the Company only recently commenced its current operations, the
Company's customers already include, among others, Xerox de Chile S.A.,
Autorentas del Pacifico (Hertz) Ltda, and Nike de Chile S.A. in Chile and Sony
Music Entertainment Peru S.A., Banco Interbank and one ISP in Peru. Upon the
substantial completion of its networks, including last mile connections to 150
buildings in each of Peru and Chile scheduled for the end of 1998, the Company
will be able to market aggressively its service offerings to additional
business customers and other telecommunications carriers. The Company also
believes that dedicated access to ISPs will represent a significant source of
new customer relationships in both Chile and Peru because of the anticipated
rapid increase in the number of Internet users throughout Latin America.
BUSINESS STRATEGY
The Company's goal is to become a leading provider of high bandwidth
telecommunications services to business and other high volume users and
carriers operating in key Latin American business centers. The Company follows
a regional business strategy in Latin America as set forth below. The Company
has modified this strategy to adapt to the specific economic and regulatory
environments of each market in which the Company operates. The Company's
ability to implement its business strategy may be affected by a number of
factors including among others, the following: general national and
international economic and business conditions, as well as conditions in the
regions in which the Company operates; demographic change; existing government
regulations and changes in, or the failure to comply with, government
regulations; competition; the loss of any significant customers; changes in
business strategy or development plans; technological developments; the ability
to attract and retain qualified personnel; the significant indebtedness of the
Company; the availability and terms of capital to fund the expansion of the
Company's business; and other factors referenced in this Prospectus. Each of
these factors is, to a large extent, subject to economic, financial,
competitive, regulatory and other factors, many of which are beyond the
Company's control. Accordingly, there can be no assurance that the Company will
successfully implement its business strategy, in whole or in part. The
Company's viability, profitability and growth depend upon the successful
implementation of its business plan. See "Risk Factors," "--Business and
Services--Peru--Country Strategy" and "--Chile--Country Strategy."
FOCUS ON KEY MARKETS IN LATIN AMERICA
The Company believes that the size and growth potential of key Latin
American business centers coupled with the ongoing liberalization of the
telecommunications markets throughout the region offer the Company considerable
growth opportunities. The Company intends to build upon its existing operations
and expertise and expand the geographic reach and density of its existing
networks as well as enter additional key Latin American business centers that
have (i) a significant level of unsatisfied demand for high quality,
state-of-the art telecommunications services, (ii) a favorable regulatory
environment and (iii) significant projected economic growth.
59
<PAGE>
ENTER MARKETS EARLY
The Company seeks to enter markets where it can construct or acquire fiber
optic networks and offer telecommunications services in advance of full market
liberalization. The Company has already implemented this strategy in Lima, Peru
where it is one of the first companies to have established a telecommunications
system prior to the liberalization of Peru's telecommunications markets in
August 1998. The Company believes that this early entry into the Lima market
will enable the Company to establish strong business relationships with its
targeted customers prior to onset of widespread competition.
PROVIDE A BROAD RANGE OF HIGH QUALITY TELECOMMUNICATIONS SERVICES
The Company intends to follow the strategy implemented by CLECs in the
United States of installing advanced equipment into their existing fiber optic
networks that enable interconnections with existing public networks and the
provision of switched telephone services. As regulation permits, the Company
will seek to secure a growing portion of its customers' existing and targeted
telecommunications business by adding local, long distance, enhanced voice and
data services to the private line services it currently offers. The Company
believes its customers require maximum reliability, high quality service, broad
geographic coverage, strong customer service and the opportune introduction of
innovative services delivered in a timely and cost-effective manner. The
Company believes that these needs are often left unmet by the former PTT in
markets where the Company currently operates.
TARGET BUSINESS CUSTOMERS AND TELECOMMUNICATIONS CARRIERS
The Company's strategy is to target business customers and
telecommunications carriers in key Latin American business centers. These
customers are typically located in major metropolitan areas, require high
reliability, high volume data transmission and voice capabilities and, in the
case of telecommunications carriers, very large capacity to interconnect POPs.
In addition, many of the Company's existing and targeted customers have
operations in more than one key Latin American business center in which the
Company currently operates or may operate in the future. The Company believes
that by targeting customers with multiple geographic locations it will achieve
operating synergies through the reduction of advertising and other related
costs.
GROWTH THROUGH ACQUISITIONS AND NEW LICENSES
The Company expects to opportunistically enter additional key Latin
American business centers in part by acquiring controlling interests in
existing companies that have licenses, concessions and rights-of-way to install
and operate fiber optic networks or by applying for such licenses and
concessions and negotiating for such rights-of-way directly. The Company may
also acquire other telecommunications service providers in existing and
targeted markets that enable the Company to expand or enhance its current
operations. The Company believes that many emerging local and long distance
carriers, cellular providers and recently privatized PTTs are likely to seek
alliances with local access providers with fiber optic systems, such as the
Company, to compete more effectively in the growing telecommunications markets.
GROWTH THROUGH STRATEGIC ALLIANCES
The Company intends to establish strategic alliances with the following
entities for the following purposes: (i) to engage major international carriers
to facilitate the termination or completion of dedicated international calls to
or from the countries where carriers' customers operate and (ii) to enter into
joint bids with local turnkey integrators and equipment vendors for the sale of
value-added services, such as video-conferencing, Internet, frame relay, ATM
networks, LAN to LAN interconnections, PBX and private telephone networks.
60
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UNIFY MARKETING IDENTITY
The Company intends to conduct its business under a single brand name in
the markets in which it operates to develop name recognition for its services.
In this regard, the Company has filed an application to register the name
"FirstCom" in Chile, Peru and the United States. The Company believes that the
use of a recognized brand name will facilitate customer referrals and achieve
economies of scale through a unified marketing campaign.
INDUSTRY OVERVIEW
GENERAL
The continuing liberalization of the telecommunications industry and
technological change have resulted in an increasingly information-intensive
business environment. Regulatory, technological, marketing and competitive
trends have significantly expanded the Company's opportunities in the
converging voice and data telecommunications markets. Rapid liberalization of
the telecommunications industry in Latin America is expected to expand
opportunities in the local telecommunications services market. Technological
advances, including growth of the Internet, the increased use of packet
switching technology for voice communications and the growth of multimedia
applications, are expected to result in growth in the high-speed data services
market. The Company believes that the current deregulation in many Latin
American countries, coupled with technological innovation, will lead to market
developments similar to those that occurred upon deregulation of long distance
telecommunications services in the United States and the United Kingdom,
including an increase in traffic volume and the continued introduction of new
providers of telecommunications services of varying sizes.
Telecommunications traffic of business customers and telecommunications
carriers has increased dramatically and these customers now insist upon the
quality and high capacity inherent in fiber optic transmission technology such
as the technology used by the Company. As customers require increased bandwidth
capabilities to handle complex voice, video and data telecommunications, the
Company believes that demand for transmission capacity will continue to
increase. Digital signals carried over optical fibers are superior in many
respects to analog signals carried over copper wires, an older technology which
many PTTs continue to use for parts of their networks, although many PTTs are
using fiber optic technology to expand their existing networks. In addition to
offering faster and more accurate transmission of voice and data
communications, digital fiber optic networks generally require less maintenance
than comparable copper wire networks, thereby decreasing operating costs. The
capacity of fiber optic cable is determined in part by the interface of
electronic equipment with the network, thereby allowing network capacity to be
increased through a change in electronics, rather than the fiber itself. Fiber
optic cable also provides enhanced transmission quality as signals are largely
immune to electromagnetic interference.
LATIN AMERICAN MARKETS
Many countries in Latin America, and most of the region's major
metropolitan markets, have economies that are growing faster than many other
areas of the world. The Company believes that this growth is attributable in
part to an increase in foreign investments, new trade agreements, such as the
NAFTA, Mercosur and the Andean Pact, and the privatization of many industries,
including the telecommunications industry. Many of Latin America's major
metropolitan centers are among the largest cities in the world, are centers of
trade and commerce for a wide region or for an entire country, and are home to
a high concentration of large domestic and multinational corporations that
require advanced telecommunications services. Following the economic recovery
of many Latin American countries in the early 1990's, multinational
corporations headquartered in North America, Europe and Asia began to invest in
Latin America by either establishing new operations or expanding existing
operations. In conducting their activities in Latin America, these
multinational corporations require state-of-the-art telecommunications networks
to handle the flow of information between their headquarters and their branches
throughout Latin America. The telecommunications infrastructure in
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many of these markets is very limited or obsolete, resulting in significant
unmet demand for advanced telecommunications services including reliable, high
capacity data circuits, private line LANs and domestic and international long
distance connectivity. The telecommunications industry in Latin America has
experienced rapid growth in large part because most Latin American governments
are opening their telecommunications markets to competition. By the year 2000,
the telecommunications markets in most countries in the region are expected to
be deregulated.
The following table sets forth certain historical and projected economic
data and selected information regarding the telecommunications markets in the
Latin American countries where the Company operates:
<TABLE>
<CAPTION>
PERU
1993 1994 1995 1996
--------- --------- ----------- -----------
<S> <C> <C> <C> <C>
ECONOMIC DATA*
Population (millions) 22.5 22.9 23.4 23.8
Real GDP (in constant 1990 US$ billions) 36.5 41.2 44.1 45.3
Inflation (%) 39.5 15.4 10.2 11.8
TELECOMMUNICATIONS DATA**
Main Lines in Service (in thousands) 673.0 772.4 1,109.2 1,435.1
Penetration Rate (main lines per 100 pop) 2.9 3.4 4.7 5.9
Service Revenues (US$ millions) 655.8 590.7 825.9 880.4
Local Services (US$ millions) 190.7 251.4 459.1 506.9
Toll Services (US$ millions) 235.2 123.2 130.9 143.1
International Services (US$ millions) 229.9 216.1 235.9 230.5
CHILE
1993 1994 1995 1996
----- ----- ------- -------
ECONOMIC DATA*
Population (in millions) 13.8 14.0 14.3 14.5
Real GDP (constant 1990 US$ billions) 38.2 39.8 43.1 46.1
Inflation (%) 12.2 8.9 8.2 6.6
TELECOMMUNICATIONS DATA**
Main Lines in Service (in millions) 1.5 1.6 1.8 2.2
Penetration Rate (main lines per 100 pop) 11.0 11.6 13.0 14.9
Service Revenues (US$ millions) 714.10 765.10 1,016.0 1,186.7
Local Services (US$ millions) 479.0 560.6 627.8 733.3
Toll Services (US$ millions) 135.2 118.9 235.6 275.2
International Services (US$ millions) 99.9 85.6 152.6 178.2
<CAPTION>
PERU
1997 1998 1999 2000
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
ECONOMIC DATA*
Population (millions) 24.3 24.8 25.3 25.8
Real GDP (in constant 1990 US$ billions) 47.6 50.2 53.1 56.5
Inflation (%) 10.0 9.1 8.3 7.5
TELECOMMUNICATIONS DATA**
Main Lines in Service (in thousands) 1,595.5 1,850.8 2,093.6 2,437.7
Penetration Rate (main lines per 100 pop) 6.6 7.5 8.3 9.4
Service Revenues (US$ millions) 1,216.2 1,410.8 1,595.9 1,858.2
Local Services (US$ millions) 676.0 784.2 887.1 1,032.9
Toll Services (US$ millions) 192.8 223.6 253.0 294.5
International Services (US$ millions) 347.4 403.0 455.8 530.8
1997 1998 1999 2000
------- ------- ------- -------
CHILE
ECONOMIC DATA*
Population (in millions) 14.7 15.0 15.2 15.4
Real GDP (constant 1990 US$ billions) 48.8 52.3 55.9 59.8
Inflation (%) 5.7 5.0 5.1 4.7
TELECOMMUNICATIONS DATA**
Main Lines in Service (in millions) 2.6 3.0 3.5 3.9
Penetration Rate (main lines per 100 pop) 17.8 20.3 22.9 25.4
Service Revenues (US$ millions) 1,443.1 1,668.4 1,911.7 2,157.1
Local Services (US$ millions) 891.7 1,030.9 1,181.3 1,332.9
Toll Services (US$ millions) 334.6 386.9 443.3 500.2
International Services (US$ millions) 216.8 250.6 287.1 324.0
</TABLE>
- ----------------
Sources: Bank of America World Information Services (March 1997) and Pyramid
Research Report (October 1996)
* Economic Data includes historical information for the years 1993-1996 and
projections for the years 1997-2000.
** Telecommunications Data includes historical information for the years
1993-1995 and projections for the years 1996-2000.
COMPETITIVE LOCAL MARKET ACCESS
Once the domain of PTTs, the local access market in both developed and
emerging countries is increasingly open to competition. Where permitted, local
markets may be entered via any combination of (i) construction of proprietary
wired network infrastructure, (ii) construction of wireless local loop, PCS or
cellular networks and (iii) resale of the existing local carrier's network.
Companies gaining local access through the use of a fiber optic rings using ATM
technology are uniquely positioned to provide services for large business
customers due to the high capacity of such systems.
In the United States and other developed countries, CAPs have been allowed
to enter markets in advance of complete deregulation through their provision of
special access services and private line services. Typically, CAPs begin
providing such services through their own fiber optic loop networks, which are
built over existing facilities and often exceed existing providers in terms of
bandwidth, reliability and enhanced service capability. Frequently, fixed
wireless technologies are used to cost effectively extend the network from the
fiber optic network to customer locations. Special access services provide high
capacity voice, data and video circuits to connect long distance carriers with
their
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respective customers. Private line services provide high capacity circuits to
transmit voice, data and video between two or more end-user locations locally
or internationally.
Long distance carriers have traditionally been the first customers for
CAPs. Local access in the markets in which the Company operates in some cases
comprises over forty percent of the cost of a long distance call. For this
reason, long distance carriers, as well as high volume corporate customers,
have great demand for the lower cost local access provided by CAPs. In
addition, as any communications failure can result in significant expenses
and/or lost revenue to businesses, corporate and carrier customers often
utilize CAPs as a back-up to their primary carrier. CAPs typically market their
private line and special access services by offering lower prices, higher
network reliability and higher quality transmissions and customer service.
Corporate customers utilize such private lines to interconnect their branch
offices and computer networks, and even to connect their internal PBX networks
with the local PTT. Telecommunications carrier networks utilize CAPs to
interconnect their switching centers, to connect major customers to their
networks, and to connect their cellular, microwave and satellite transmitters.
With direct connection to customers, CAPs may also market higher margin
value-added services such as Internet access, database access and Centrex.
Depending on local regulation, the CAP may also provide dial tone for any calls
made to points outside of the local market. In most markets, corporate
customers will begin by transferring a small portion of their
telecommunications requirements to the CAP. As these customers experience the
CAP's competitive cost and superior service, they often transfer increasing
amounts of their business to the new operator.
As deregulation has permitted, most CAPs have attempted to expand their
services from the provision of private line and special access services to the
provision of CLEC switched or dial tone services that are provided through a
combination of the CAP's own network and through interconnection with the local
PTT network. This evolution has enabled CAPs to achieve increased gross margins
over time. Typically, private line services are provided on a flat fee, monthly
rental basis. Switched services, on the other hand, are billed on a volume or
minutes of use basis which generally generates substantially higher revenues
and margins. Through interconnection with the local PTT, new carriers are able
to offer services immediately to any customer on the PTT's network, thereby
significantly increasing the number of customers and markets that they serve
without physically expanding their own networks. The PTTs receive a
volume-based payment for the use of their network.
Although the Company has based its strategy in part on the experiences of
CAPs and CLECs in the United States and other developed countries, there can be
no assurance that the liberalizing Latin American markets will be characterized
by the same trends as were found in such other markets.
BUSINESS AND SERVICES
Peru
COUNTRY OVERVIEW. Peru is the fourth largest country in South America with
an estimated population of 23.9 million people. Lima, the capital of Peru and
the major economic center in Peru, has a population of approximately 6.8
million people. According to the 1996 report issued by the Peruvian National
Bureau of Statistics, as of 1993, approximately 70.1% of Peru's population
lived in cities. In 1990, Alberto Fujimori, a political outsider, was elected
President and embarked on a series of economic and political measures to
curtail inflation and restore economic stability. From 1991 through 1996, GDP
increased by an average annual growth rate of 5.2%, although GDP increased by
only 2.8% in 1996. The lower GDP growth rate in 1996 has been largely
attributed to the Peruvian government's effort to reduce expenditures to avoid
an overheated economy and to reduce Peru's current account deficit. Inflation
has been dramatically curtailed as a result of President Fujimori's economic
plan, falling from 7,649.7% in 1990 to 11.8% in 1996. GDP is expected to grow
at a compound annual growth rate of 6.2% from 1997 to 2002.
MARKET OVERVIEW. The Company believes that demand for telephone service in
Peru has historically been unmet due to lack of investment, high prices, poor
service and long waiting periods for
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<PAGE>
service. One of the goals of the privatization of Peru's former local and long
distance PTT, Telefonica, in 1994 (the "Privatization") was to expand
significantly the national telecommunications network and improve service
quality. The number of lines in service has increased since the Privatization
from approximately 772,000 to over 1.4 million at December 31, 1996.
Notwithstanding the significant recent growth in lines in service, Peru
continues to have a relatively low penetration rate with 5.9 lines in service
per 100 inhabitants at December 31, 1996. The Company believes that continued
growth in demand for telecommunication services in Peru will be influenced by
the growth of the Peruvian economy, foreign investment and international trade,
the continued expansion of the telecommunications network and the re-balancing
of tariffs. Based on 1996 operating results for Telefonica, the local and long
distance telecommunications markets in Peru are estimated to have accounted for
approximately $880.5 million in total revenues, of which approximately $506.9
million are local access and service revenues and approximately $373.6 million
are domestic and international long distance revenues. The Company believes
that Peru's telecommunications market offers an excellent environment for
telecommunications business growth. The Company believes that the Peruvian
economy is also a source of growing demand for telecommunication services with
growing domestic and multinational businesses attracting significant foreign
investment. The following chart presents certain historical and projected
information with respect to the telecommunications market in Peru for the
periods indicated:
<TABLE>
<CAPTION>
TELECOMMUNICATIONS DATA--PERU*
--------------------------------------------------------
1993 1994 1995
------------------ ------------------ ------------------
<S> <C> <C> <C>
TELEPHONE
Minutes (in millions)
Local Services 3,600.0 (1) 4,240.0 (1) 4,954.0 (1)
Long Distance Domestic 388.0 (1) 394.0 (1) 461.0 (1)
Long Distance International 179.2 (1) 232.4 (1) 262.1 (1)
MAIN LINES IN SERVICE
(IN THOUSANDS) 673.0 (2) 772.4 (2) 1,109.2 (2)
PENETRATION RATE
(main lines per 100 pop) 2.9 (4) 3.4 (4) 4.7 (4)
SERVICE REVENUES
Local Services (US$ millions) 190.7 (1) 251.4 (4) 459.1 (4)
Toll Services (US$ millions) 235.2 (1) 123.2 (4) 130.9 (4)
International Services (US$ millions) 229.9 (1) 216.1 (4) 235.9 (4)
DATA
X-25/Frame Relay Ports (in thousands) 0.5 (1) 0.7 (1) 0.9 (1)
ISP Host Penetration
(main lines per 100 pop) 0.000(5) 0.001(5) 0.003(5)
<CAPTION>
TELECOMMUNICATIONS DATA--PERU*
----------------------------------------------------------------------------
1996 1997 1998 1999
------------------ ------------------ ------------------ ------------------
<S> <C> <C> <C> <C>
TELEPHONE
Minutes (in millions)
Local Services 7,806.2 (2) 4,193.4 (3) n/a n/a
Long Distance Domestic 577.0 (2) 326.4 (3) n/a n/a
Long Distance International 294.5 (2) 164.6 (3) n/a n/a
MAIN LINES IN SERVICE
(IN THOUSANDS) 1,435.1 (2) 1,595.5 (1) 1,850.8 (1) 2,093.6 (1)
PENETRATION RATE
(main lines per 100 pop) 5.9 (2) 6.6 (1) 7.5 (1) 8.3 (1)
SERVICE REVENUES
Local Services (US$ millions) 506.9 (3) 676.0 (1) 784.2 (1) 887.1 (1)
1,032.9 (1)
Toll Services (US$ millions) 143.15 (3) 192.8 (1) 223.6 (1) 253.0 (1)
International Services (US$ millions) 230.5 (3) 347.4 (1) 403.0 (1) 455.8 (1)
DATA
X-25/Frame Relay Ports (in thousands) 1.2 (1) 1.5 (1) 14.0 (1) 29.9 (1)
ISP Host Penetration
(main lines per 100 pop) 0.021(5) 0.084(5) 0.208(5) 0.361(5)
<CAPTION>
TELECOMMUNICATION
NS DATA--PERU*
------------------
2000
------------------
<S> <C>
TELEPHONE
Minutes (in millions)
Local Services n/a
Long Distance Domestic n/a
Long Distance International n/a
MAIN LINES IN SERVICE
(IN THOUSANDS) 2,437.7 (1)
PENETRATION RATE
(main lines per 100 pop) 9.4 (1)
SERVICE REVENUES
Local Services (US$ millions)
Toll Services (US$ millions) 294.5 (1)
International Services (US$ millions) 530.8 (1)
DATA
X-25/Frame Relay Ports (in thousands) 46.6 (1)
ISP Host Penetration
(main lines per 100 pop) 0.515 (5)
</TABLE>
- ----------------
(1) Source: Pyramid Research Report.
(2) Source: Telefonica del Peru, S.A. 1996 Annual Report.
(3) Source: Telefonica del Peru S.A., 2nd Quarter Report: July 31, 1997.
Translations from 6/30/97 Peruvian Nuevo Sol into US$ at the
6/30/97 exchange rate of 0.377 US$/Peruvian Nuevo Sol.
(4) Source: Telefonica del Peru 1995 Annual Report. Translations from 12/31/95
Peruvian Nuevo Sol into US$ at the 12/29/95 exchange rate of 0.4341
US$/Peruvian Nuevo Sol.
(5) Source: Calculations based on Pyramid Research Report estimates of ISP
hosts and of population for Peru.
(*) Includes historical information for the years 1993-1995 and projections for
the years 1996-2000.
OPERATING COMPANY OVERVIEW. The Company conducts its business in Peru
through its wholly-owned subsidiary, Resetel, which was acquired by the Company
in May 1996. Resetel offers to multinational, national and local businesses a
broad array of high quality data, video and voice communications services,
including LAN interconnection, remote terminal access and dedicated channels
for access to the Internet, on a private line basis through a digital fiber
optic network in metropolitan Lima, Peru. The Company has installed and in
operation 90 kilometers of its fiber optic network, and plans to expand its
network to approximately 230 kilometers by the end of 1998. The Company
anticipates that its fiber optic network will travel through the major
commercial and industrial districts of Lima and the adjacent port city of
Callao (combined population of approximately 7.5 million
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<PAGE>
people) upon its scheduled completion in 1998. The Company is one of only two
companies which is currently permitted to compete in the provision of its
services with Telefonica.
The Company intends to expand its existing service offerings to provide
local public switched telephony service in Lima upon liberalization of Peru's
telecommunications markets and the expiration of Telefonica's exclusive
concession to provide public switched local and long distance telephony
services, which is scheduled to occur in July 1999. Resetel also intends to
seek approval to provide long distance services as regulation permits. By
implementing its private line and value-added services prior to the expiration
of Telefonica's exclusive concession in 1999, the Company believes that it will
be able to develop a strong customer base and network presence that will enable
it to rapidly enter the local telephony and long distance markets upon
deregulation.
COUNTRY STRATEGY. The Company intends to expand its Peruvian operations.
The Company is currently directing its marketing efforts in Lima towards a
number of Peru's leading financial institutions and multinational companies
with a strong presence in Peru.
The Company also intends to expand the focus of its marketing efforts to
include medium- and small-sized businesses which are located in the major
commercial and industrial districts in Lima and in the port city of Callao. The
Company believes, based upon an independent market survey, that a large number
of its targeted business customers are located in commercial buildings which
are not connected to a fiber optic network, but rather are connected to
networks based on older, copper technology with limited capacity. The Company
intends to take advantage of this opportunity by directly offering its services
to businesses identified by management as having a need for the Company's
services. The Company also intends to (i) use an independent marketing firm to
identify commercial multi-tenant buildings in which a critical mass of
occupants are located that have or will have an interest in acquiring the
Company's services, (ii) rapidly connect many of these buildings to the
Company's existing fiber optic network, (iii) offer an extensive selection of
high quality voice and data services on a private line basis and (iv) pursue an
aggressive sales and marketing strategy that includes (A) an advertising and
marketing campaign designed to increase customer awareness of the Company's
services, (B) holding educational seminars which explain the benefits of using
the telecommunications services offered by the Company and (C) employing a
highly qualified sales force with extensive knowledge of the local market. The
Company believes that customers in Peru are seeking to utilize new
communications technologies in order to more effectively compete in the global
market. By helping to educate its customers on the use of the latest
technologies and by providing turn-key corporate networks and
telecommunications solutions, the Company expects to develop strong customer
relationships that will help it to increase customer revenues. The Company
believes that this strategy will enable it to gain early mover advantages,
build its customer base and expand the range of services provided to its
customers to include local and long distance telephony upon the expiration of
Telefonica's exclusive concession in July 1999.
The Company believes that the quality of its private line services
compares favorably to similar services offered by its competitors. Accordingly,
as part of its marketing strategy, the Company is offering its services on a
trial basis to several major financial institutions in Lima. Upon completion of
the trial with Interbank in July 1997, the Company was hired to link ten of
Interbank's Lima branches through the Company's network.
In addition, the Company believes that the rapid growth of Internet use in
Peru will provide it with a significant opportunity to further develop its
customer base through the strategic referral of customers between ISPs and the
Company.
CONCESSIONS. Resetel provides its services pursuant to a renewable local
carrier concession expiring in 2016. Resetel's concession can be renewed for an
additional 20 years upon prior approval by the Peruvian Ministry of Transport
and Communications. After July 1999, when the local telephony services market
opens for competition, Resetel and other carriers will be able to provide local
telephony services as regulations permit. At such time, Resetel intends to seek
approval to also provide long distance services.
65
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NETWORK INFRASTRUCTURE. The Company provides its services in Peru through
its 230 kilometer fiber optic digital switched network, which is expected to
expand to approximately 400 kilometers. When completed the Company's fiber
optic network will extend throughout the major commercial and industrial
districts of Lima and the port city of Callao (combined population of
approximately 7.5 million people). The Company anticipates substantial
completion of its ATM network in Peru, including last mile connections to
approximately 150 buildings before the end of 1998. The Company's Lima network
will be implemented using self-healing rings equipped with fully redundant ATM
technology.
The Company has utility pole rights-of-way contracts with two of the
Peruvian utility companies which allows the Company to use utility poles to
route cable throughout most of its existing and planned network.
In conjunction with its sales initiatives, the Company expects to invest
in the "last mile" network links that connect commercial buildings and customer
offices with the Company's fiber optic network by installing fiber optic cable
in selected commercial buildings in the Lima business district.
CUSTOMERS. Resetel currently services 30 customers in Peru, including
Interbank and Sony Music Entertainment Peru S.A. Resetel will seek to enter
into contracts with new customers for a term of at least two years. Prices
charged to customers will vary in accordance with the customer's requirements
based on the number of locations, type of services, transmission rates and
length of service contracts.
COMPETITION. Peru's telecommunications market is dominated by Telefonica,
a company formed by the merger in 1994 of the former local telephone service
PTT, Compania Peruana de Telefonos and ENTEL, the former long distance
telephone service PTT. Telefonica is 35% owned by Telefonica de Espana S.A.
Telefonica has announced plans to devote a large amount of its resources over
the next few years to install hundreds of thousands of telephone lines to
provide basic telephone service. The Company believes that the focus of
Telefonica on expanding basic telephone services has created an opportunity for
the Company to capture market share by providing value-added, high bandwidth
services to business customers on a private line basis. Currently, Peru's only
other wireline telecommunications carrier is Tele2000, approximately 58.7% of
which is owned by BellSouth Corporation. Tele2000 currently operates cellular,
public pay phone and cable television services in Lima and other Peruvian
cities. Although Tele2000 has to date focused largely on providing cellular and
cable television services, it owns and operates a small fiber optic loop which
may be utilized to compete directly with the Company.
Management believes that following the deregulation of local and domestic
and international long-distance telephony in July 1999, competition in these
services may arise from a variety of new entrants, including telecommunications
carriers providing services in other countries as well as companies currently
providing services in other industries previously liberalized in Peru. Existing
telecommunications service providers may have established customer
relationships as well as other capabilities and resources to expand their
current service offerings and include local carriers, wireless telephone
operators, the providers of data services, cable television network operators
and operators of existing private network infrastructure, such as electric
power companies. The Company believes that other companies have filed
applications for local concessions, including COMSAT whose license was recently
granted.
The identity of new entrants and the scope of increased competition, and
any corresponding adverse effect on the Company's results, will depend on a
variety of factors. Among such factors are the business strategies and
financial and technical capabilities of potential competitors, prevailing
market conditions at the time competition is permitted, applicable Peruvian
regulations with respect to new entrants and the Company, as well as the
effectiveness of the Company's strategy to prepare for increased competition.
See "Risk Factors--Competition."
CHILE
COUNTRY OVERVIEW. Chile is a highly urbanized country, with a population
of approximately 14.7 million in 1996, of which 85.0% are estimated to live in
cities. Santiago, the capital of Chile and a major
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international economic center, has a population of approximately 5.1 million
people. The Chilean government has implemented a strategy to encourage foreign
investment in Chile and it has privatized and deregulated many industries,
including transportation, energy and telecommunications. Since 1991, the
Chilean economy has experienced high rates of economic growth. From 1991
through 1996, GDP increased by an average annual rate of 7.3%. Inflation has
been dramatically curtailed during this period, falling from 18.7% in 1991 to
6.6% in 1996. GDP is expected to grow at a compounded annual growth rate of
7.0% from 1997 through the year 2002.
MARKET OVERVIEW. As the first telecommunications market to commence
deregulation in Latin America, Chile has experienced substantial growth in
telecommunications revenue and telephone density. Total international long
distance revenues have grown from $99.9 million in 1993 to $178.2 million in
1996, representing a compound annual growth rate of 21.0%. Chile's
telecommunications markets continue to be dominated by the former PTTs,
although new entrants have begun to reduce the former PTTs' market share. In
the long distance market, Entel, the former long distance PTT, faces
competition from eight other carriers, and its market share has been reduced to
approximately 40.4% for domestic long distance and 37.5% for international
long-distance. As a result of its open telecommunications market, Chilean
subscribers enjoy some of the lowest prices in the world for long distance
telephony services. In the local telephony market, CTC, the former local
services PTT, controls approximately 96% of the local telephony market. The
Company believes that the full implementation of its business strategy will
enable it to penetrate this market and further develop its customer base.
The following table provides some general information on the historical
size and estimated growth of Chile's telecommunications market.
<TABLE>
<CAPTION>
TELECOMMUNICATIONS DATA--CHILE
-----------------------------------------------------------------------
1993 1994 1995 1996
---------------- ---------------- ------------------ ------------------
<S> <C> <C> <C> <C>
TELEPHONE MINUTES
Local Service -- -- -- --
Long Distance Domestic (millions) n/a n/a 1,847.2 (1) 2,259.0 (2)
Long Distance International (millions) n/a n/a 136.9 (3) 172.9 (2)
MAIN LINES IN SERVICE
(in thousands) 1,513 (4) 1,626 (4) 1,846 (4) 2,157 (4)
PENETRATION RATE
(main lines per 100 pop) 11.0 (4) 11.6 (4) 13.0 (4) 14.9 (4)
SERVICE REVENUES
(US$ millions)
Local Services (US$ millions) 479.0 (4) 560.6 (4) 627.8 (4) 733.3 (4)
Toll Services (US$ millions) 135.2 (4) 118.9 (4) 235.6 (4) 275.2 (4)
International Services (US$ millions) 99.9 (4) 85.6 (4) 152.6 (4) 178.2 (4)
DATA
X-25/Frame Relay Ports (in thousands) 3.3 (4) 3.6 (4) 4.7 (4) 10.2 (4)
ISP Host Penetration
(main lines per 100 pop) 0.020 (5) 0.022 (5) 0.063 (5) 0.157 (5)
<CAPTION>
TELECOMMUNICATIONS DATA--CHILE
-------------------------------------------------------------------------
1997 1998 1999 2000
---------------- ------------------ ------------------ ------------------
<S> <C> <C> <C> <C>
TELEPHONE MINUTES
Local Service -- -- -- --
Long Distance Domestic (millions) n/a n/a n/a n/a
Long Distance International (millions) n/a n/a n/a n/a
MAIN LINES IN SERVICE
(in thousands) 2,623 (4) 3,032 (4) 3,474 (4) 3,920 (4)
PENETRATION RATE
(main lines per 100 pop) 17.8 (4) 20.3 (4) 22.9 (4) 25.4 (4)
SERVICE REVENUES
(US$ millions)
Local Services (US$ millions) 891.7 (4) 1,030.9 (4) 1,181.3 (4) 1,332.9 (4)
Toll Services (US$ millions) 334.6 (4) 386.9 (4) 443.3 (4) 500.2 (4)
International Services (US$ millions) 216.8 (4) 250.6 (4) 287.1 (4) 324.0 (4)
DATA
X-25/Frame Relay Ports (in thousands) 17.5 (4) 25.8 (1) 33.9 (4) 39.7 (4)
ISP Host Penetration
(main lines per 100 pop) 0.279 (5) 0.413 (5) 0.525 (5) 0.601 (5)
</TABLE>
- ----------------
n/a--Information not publicly available.
(1) Statistical measures were changed in 1994 due to the multicarrier system
implementation.
(2) Source: Calculations based on monthly market share data provided by the
Subsecretaria de Telecomunicaciones ("SUBTEL") as of August 1997.
(3) Source: Calculations based on Pyramid Research Report estimates of lines in
services--includes historical information for the years 1993-1995
and projections for the years 1996-2000.
(4) Source: Pyramid Research Report--includes historical information for the
years 1993-1995 and projections for the years 1996-2000.
(5) Source: Calculations based on Pyramid Research Report estimates of ISP
hosts and population for Chile.
OPERATING COMPANY OVERVIEW. The Company conducts its business in Santiago
through its wholly-owned subsidiaries, FirstCom Networks, formerly Hewster
Chile, S.A., and FirstCom Long Distance. FirstCom Networks currently provides
businesses in Santiago with high quality voice and data communications services
on a private line basis, including local area network interconnections, remote
terminal access, PBX to PBX connections, remote printing capabilities and high
speed access to the
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Internet through arrangements with a Chilean based ISP and private line based
services. In addition, FirstCom Networks provides its customers with local and
wide area network design, engineering, installation, systems integration and
support services. FirstCom Long Distance provides domestic and international
long distance services in Santiago. FirstCom Long Distance's long distance
traffic is switched and transported, in part, through its own gateway switch
and satellite earth station as well as through interconnection with other
Chilean long distance carriers. The Company's Chilean customer base currently
includes approximately 40 large and medium-sized businesses such as Xerox de
Chile S.A., Autorentas del Pacifico (Hertz) Ltda., Iberia Airlines, The Aetna
Life Insurance Company, Nike de Chile S.A. and one ISP. The Company believes
that its high quality transmission capabilities, responsive customer service
and domestic and international long distance services have become important
elements in many of its customers' telecommunications network and operational
strategies. The Company provides network services through its 120 kilometer
digital fiber optic network which covers the downtown business district and
outlying industrial park and airport corridor. This network utilizes
advantageous rights-of-way through Santiago's underground subway system (the
"Metro") as well as through certain facilities of ENERSIS, a Chilean power
company.
The Company anticipates being granted during the fourth quarter of 1998 a
license for local telephony. However, there can be no assurance that the
Company will secure such license, be able to make the necessary network
enhancements to provide such services or successfully market such services to
potential customers.
COUNTRY STRATEGY. The Company intends to expand its Chilean operations.
The Company is currently directing its marketing efforts in Santiago towards
medium-and small-sized businesses. Large businesses in Santiago are typically
located in single-tenant buildings and are currently the focus of Chile's major
carriers. Therefore, the Company believes that a substantial opportunity exists
to provide services to medium- and small-sized businesses which are currently
underserved. These businesses are typically located in multi-tenant buildings
throughout downtown Santiago and the outlying industrial district. The Company
believes that, based upon an independent market survey, a large number of its
targeted business customers are located in commercial buildings which are not
connected to a fiber optic network, but rather are connected to networks
through older, copper technology with limited capacity. The Company intends to
take advantage of this opportunity by (i) using an independent marketing firm
to identify commercial, multi-tenant buildings in which a critical mass of
occupants are located that have or will have an interest in acquiring the
Company's services, (ii) rapidly connecting many of these buildings to the
Company's existing fiber optic network, (iii) offering high quality voice and
data services on a private line basis as well as long distance telephony and
(iv) pursuing a sales and marketing strategy that includes a combination of
direct sales calls, telemarketing and direct mail campaigns and an increased
advertising budget.
CONCESSIONS. In 1991, Hewster Servicios Intermedios, S.A., FirstCom
Networks' predecessor, was granted a concession with an unlimited duration to
provide intermediate telecommunications services (the "FirstCom Networks
Concession"). The FirstCom Networks Concession authorized the installation and
operation of the Company's fiber optic cable local network in metropolitan
Santiago. Pursuant to the FirstCom Networks Concession, FirstCom Networks is
authorized to provide voice and data transmission services and certain
value-added services on a private line basis. The FirstCom Networks Concession
may not be transferred, assigned or leased, nor may control of FirstCom
Networks be transferred or assigned, without the prior approval of SUBTEL. The
Company, through a wholly-owned subsidiary, Visat, also holds a concession with
an unlimited duration to construct and operate a network of satellite earth
stations throughout Chile that can provide national and international long
distance telecommunications services (the "Visat Concession"). In addition, the
Company is authorized to provide services based on 38 GHz wireless technology
in Santiago. FirstCom Long Distance holds a concession with an unlimited
duration to provide public, switched national and international long distance
services in Chile. FirstCom Long Distance's concession was issued by the
Chilean Ministry of Transport and Communications in 1993.
NETWORK INFRASTRUCTURE. FirstCom Networks provides network services in
Chile through its 120 kilometer fiber optic network which currently covers the
majority of Santiago's downtown business
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district and the outlying industrial park and airport corridors. The Company's
120 kilometer digital fiber optic network travels through the traditional
commercial center of Santiago, where many established businesses are
headquartered, and the rapidly growing expansion areas, including outlying
industrial parks, and the airport corridor where many branch offices and new
companies have located. FirstCom Long Distance provides domestic and
international long distance services in Santiago through its own gateway switch
and satellite earth station and through interconnections with other Chilean
long distance carriers.
The Company is in the process of upgrading its fiber optic network in
Chile by replacing the existing PDH and SDH nodes with ATM node equipment (the
"ATM Upgrade"). The planned ATM Upgrade is expected to be completed by the end
of 1998.
The portion of the Company's network that passes through the downtown
business and financial district has been installed in Santiago's Metro subway
tunnels. The Metro subway tunnels protect the network from hazards such as
severe weather and vandalism. Metro access points, such as ventilation shafts
and platform entrances, are available every approximately 250 meters along the
subway route. These facilities serve as the "insert" points for last mile
connections between the Company's network and customer buildings. In addition
to its agreement with the Metro, the Company has a utility pole right-of-way
contract with one of Chile's electric companies which allows the Company to use
utility poles to route cable to outlying areas of Santiago.
The Company plans to invest in the "last mile" network links that connect
commercial buildings and customer offices with the Company's fiber optic
network. Where customers are operating in newly developed areas of Santiago,
the Company intends to install its own last mile network infrastructure to
connect those customers with its fiber optic network. In areas of Santiago
where the telecommunications infrastructure is more developed, the Company
believes that it may grow most efficiently by leasing such last mile
connections from other network operators. The Company anticipates completing
last mile connections to approximately 150 buildings before the end of 1998.
The Company recently installed its first 38 GHz wireless connection
between its fiber optic network and an ISP. The Company intends to utilize this
wireless technology to connect customers more rapidly and efficiently to its
fiber optic network. This wireless connection is deployed by installing
wireless transceivers on rooftops, towers or windows where line-of-sight can be
established between the connected points. This technology will enable the
Company to develop POPs that serve buildings not currently reached by its fiber
optic network without paying interconnection fees to the local telephone
company. 38 GHz technology provides network connections similar to fiber optic
circuits in terms of both bandwidth and service quality.
The Company intends to invest in FirstCom Long Distance to improve the
quality of its service through the continuing upgrade of FirstCom Long
Distance's switching infrastructure and customer service platforms. In
addition, the Company plans to acquire or install, during 1998, an additional
satellite antenna which will enable FirstCom Long Distance to interconnect with
additional international long distance carriers, subject to regulatory
approval. Such additional satellite capability is expected to enable FirstCom
Long Distance to obtain lower prices for international transmission services.
FirstCom Long Distance obtains local access services through
interconnection agreements with the following operators or their subsidiaries:
CTC Mundo, Complejo Manufacturero de Equipos Telefonicos S.A.C.I. ("CMET"),
Entel, BellSouth Chile S.A., Telefonica Manquehue S.A., Lucsic and Compania
Nacional de Telefonos S.A. ("CNT"). In 1997, FirstCom Long Distance installed a
new Excel NS 2000 international long distance gateway switch to handle all
international long distance calls as well as credit card and callback services.
FirstCom Long Distance operates a 9.1 meter satellite earth station located in
Santiago through which it links with Satelitron, a Mexican carrier, which then
links with a number of other carriers through the Mexican Solidaridad I
satellite. FirstCom Long Distance's satellite earth station is linked with its
gateway switch via a 18-19 GHz microwave link. FirstCom Long Distance
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<PAGE>
currently operates a 24-hour network control and operator service center in
Santiago to monitor its network and handle customer service calls.
CUSTOMERS. FirstCom Networks currently services approximately 43 customers
in Santiago, including Xerox de Chile S.A., Iberia Airlines, Autorentas del
Pacifico (Hertz) Ltda., Nike de Chile S.A. and The Aetna Life Insurance
Company. FirstCom Networks charges a monthly fee for its services based on the
length of the contract and the type and quantity of services provided. FirstCom
Long Distance provides domestic and international long distance services to
approximately eight large corporations, 800 medium and small-size corporations
and 400 residential customers through annual service contract arrangements. In
addition, during the past three months, FirstCom Long Distance provided casual
dialing services to approximately 20,000 non-subscriber users. FirstCom Long
Distance also provides routing services to a number of other long distance
carriers including Entel.
COMPETITION. Chile's local and long distance markets were both opened to
competition in 1994, with the only constraint being a four-year long distance
market share cap imposed on Chile's former local services monopoly, CTC. There
are currently five telecommunications groups that provide both local and long
distance services, three of which also provide data services. There are also
three other licensed providers of local telephony services and four other
licensed providers of domestic and international long distance services. In the
long distance market, Entel, the former long distance PTT, has a market share
of approximately 40.4% for domestic long distance and 37.5% for international
long distance. In the local telephony market, CTC, the former local services
PTT, has a market share of approximately 96%. Both CTC and Entel operate fiber
optic loops in Santiago, while Teleductos S.A. operates a passive
point-to-point network built using a star topology.
The Company believes it can successfully compete in the Santiago
telecommunications market by providing customers a competitively priced,
bundled service offering consisting of data, long distance and other
value-added services. In addition, the Company intends to begin offering local
services during 1998 after it receives a license, as to which there can be no
assurance. Such services will be delivered over the Company's digital fiber
optic network which will help the Company control operating costs and minimize
the need to rely on other carriers' networks. The Company believes that it is
well-positioned to develop and increase its customer base in Santiago because
(i) it will be able to gain a "first mover" advantage in offering services to
its targeted customer base of medium and small-sized businesses which the
Company believes have significant unmet demand for advanced telecommunications
services and (ii) its services are provided via a digital fiber optic network
that utilizes the ATM protocol and "drop and insert" technology, which enables
the Company to offer an extensive range of advanced telecommunications
services. The Company believes that its size and the entrepreneurial culture of
its management team will allow it to react quickly to changes in the
marketplace and that, coupled with its strong commitment to customer service,
will differentiate FirstCom Networks and FirstCom Long Distance from its
larger, less flexible competitors.
REGULATION
PERU
PERUVIAN TELECOMMUNICATIONS LAWS AND REGULATIONS. The principal features
of Peruvian regulation of telecommunications services include the General
Telecommunications Law (the "Peruvian Telecommunications Law"), State
Contracts, the General Regulation to the Telecommunications Law (the "General
Regulation"), and the Regulation (the "OSIPTEL Regulation") for the
Organization for Supervision of Private Investments in Telecommunications
("OSIPTEL"). These laws and their related governmental authorities constitute
the legal and regulatory framework within which the Company provides services
in Peru.
The Peruvian Telecommunications Law sets out the basic framework for the
provision and regulation of telecommunications services, and has the stated
objective of providing a competitive market in telecommunications. The law
grants the Peruvian government the ability to oversee
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telecommunications services through the Ministry of Transportation,
Communications, Housing and Construction (the "Ministry of Transportation" or
the "Ministry"). The Ministry has the authority to grant concessions and impose
sanctions for the violation of telecommunications laws. Pursuant to Supreme
Decree No. 007-97-MTC, the Specialized Telecommunications Concession Unit
("STCU") became the government agency within the Ministry charged with the
following functions previously performed by OSIPTEL: (i) grant, renew and
cancel concessions, authorizations, permits and licenses; (ii) manage the
electric spectrum and approve the assignment of frequencies; and (iii)
discontinue the rendering of value added services offered by concessionaires
when such services cause any damage or harm to the public telecommunications
network.
CONCESSIONS. A private entity may only provide telecommunications services
in Peru pursuant to a concession granted by STCU and in accordance with a state
contract (the "State Contract") to be entered between the STCU and the
concessionaire. Such concessions, including the concession held by the Company
through Resetel, have a maximum period of twenty years and can be renewed for
an equal term without limitation subject to the submission of an application
for renewal two years prior to the expiration of the concession and compliance
with the requirements under the concession. The State Contract outlines, among
other obligations: (i) a minimum expansion plan for the operator; (ii) required
fees and tariffs; (iii) technology standards for all equipment; and (iv)
quality standards of service.
State Contracts are treated under Peruvian law the same as contracts
between private parties. For this reason, such contracts cannot be modified or
terminated by any subsequent regulation or legislation. The Ministry may,
however, if it is deemed in the public interest, modify the terms of State
Contracts unilaterally if such terms relate to the international
telecommunications policy of the Ministry, or if it is necessary to modify the
contract to comply with international laws, treaties or conventions. These
changes can only take place through an administrative process that provides for
public comment on any proposed changes.
LOCAL AND LONG DISTANCE SERVICES. Dial tone and public switched local and
long distance services in Peru will be provided exclusively by Telefonica until
May 1999, at which time the exclusivity provisions in Telefonica's concession
will expire and the local and long distance markets are scheduled to be opened
to competition by new entrants. The Company operates under a concession which
permits it to provide private line, special access and value-added services
within the local telecommunications markets of Lima and Callao. Beginning in
1999, the Company may seek to obtain authorization to begin providing dial tone
as well as public local and long distance switched services.
TECHNICAL REQUIREMENTS. The Company is required to comply with regulations
and detailed technical plans promulgated by the OSIPTEL that apply to such
matters as the transmission, routing, signaling and assignment of numbers in
the Peruvian telephone network as well as use of the radio frequency spectrum.
Before concessionaires initiate service, their facilities must have been
authorized by the Ministry of Communications and must be in full compliance
with the applicable regulations and technical plans. Failure to comply with the
technical plans can be grounds for terminating a concession if the holder does
not comply within a period of time prescribed by the OSIPTEL.
Both Telefonica and operators of private networks must make their networks
available for interconnection with other carriers' networks in order to promote
competition within Peru's telecommunications marketplace.
FEES, TARIFFS AND OTHER CHARGES. In conformity with the Telecommunications
Law, the General Regulation, and the OSIPTEL Regulation, telephone operators,
including the Company, must pay certain fees, tariffs, and other charges which
are primarily comprised of: (i) a concession fee; (ii) annual tariffs; (iii)
payment to OSIPTEL for supervisory services; and (iv) contribution to the Fund
for Private Investment in Telecommunications ("FITEL"). The Company may set its
own tariff levels for its private line service, subject to certain maximum
tariff levels set by the OSIPTEL.
FOREIGN INVESTMENT AND EXCHANGE CONTROLS. The basic legal framework to
attract foreign investment to Peru is provided by the Foreign Investment
Promotion Law. The Law provides for
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specific rules that guarantee nondiscriminatory treatment of foreign investors
investing in Peru, and provides mechanisms to stimulate and secure foreign
capital. Specifically, under the Law, foreign investors may freely remit all
profit and repatriate all capital invested in Peru, and may freely convert such
local currency proceeds into U.S. dollars. No registration with any government
authority of such profit remittance or capital repatriation is required under
Peruvian law irrespective of whether the original investment was made in the
form of a capital contribution or intercompany loans. Notwithstanding the low
level of restrictions on foreign investment, Peruvian law provides that if the
foreign investor's home country imposes foreign investment restrictions on
investments made by Peruvian companies in that country, the Peruvian government
is authorized to impose similar restrictions with respect to investments made
by companies from that country. For this reason, foreign investors are
encouraged to enter into a legal stabilization agreement (the "Legal Stability
Agreement") with the Peruvian government to guarantee certain rights with
respect to their foreign investment in Peruvian companies.
Legal Stability Agreements are entered into for a term of ten years.
Foreign investors who execute such agreements are guaranteed the following
rights, as of the date of the execution of the agreement: (i) maintenance of
the existing tax treatment of the foreign investment; (ii) legal stability as
to the availability of foreign currency for the remittance of profits and
repatriation of capital and (iii) non-discriminatory treatment of the foreign
investor.
Foreign investors may enter into the Legal Stability Agreement by
submitting an application to the National Commission on Foreign Investments,
provided that the capital contribution is made in the following manner: (i) a
capital contribution in cash of at least $2.0 million within two years of the
date of execution of the agreement; or (ii) a capital contribution in cash of
at least $500,000 and creation of at least 20 employment positions within two
years from the date of the execution of the agreement.
CHILE
TELECOMMUNICATIONS LAWS AND REGULATIONS. The Ley General de
Telecomunicaciones (General Law of Telecommunications), Law No. 18.168 (1982)
(the "Chilean Telecommunications Law") and various decrees issued by the
Ministry of Transportation and Telecommunications and other Chilean
governmental authorities, constitute the legal and regulatory framework within
which the Company provides services in Chile.
In 1994, the Chilean Telecommunications Law was amended to promote greater
competition in the telecommunications sector and to establish a framework for a
multicarrier dialing system. The most significant amendments were: (i) in the
case of local telephone carriers, only their affiliates or other related
companies, rather than the local telephone carriers themselves, can now provide
public long distance services and (ii) the establishment of all carriers'
maximum market shares in the domestic long distance market for a four-year
period and in the international long distance market for three years, each
period measured from the inception of the multicarrier dialing system, as set
forth in the following table. Companies that carry traffic above these units
will be subject to substantial financial penalties and the Undersecretary of
Telecommunications may suspend their service.
<TABLE>
<CAPTION>
MAXIMUM MARKET SHARE CAPS
----------------------------------------
YEAR 1 YEAR 2 YEAR 3 YEAR 4
-------- -------- -------- -------
(IN MINUTES)
<S> <C> <C> <C> <C>
Carriers Affiliated with Local Operators:
Domestic Long Distance 35% 45% 55% 60%
International Long Distance 20 30 40 --
Other Carriers:
Domestic Long Distance 80 70 60 60
International Long Distance 70 65 60 --
</TABLE>
The Chilean Telecommunications Law also requires providers of public
telephone services to conform to a multicarrier system in which end-users,
rather than local telephone carriers, will determine
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on a call-by-call or contractual basis the long distance carrier they want to
use. In addition, long distance carriers are authorized to establish direct
connections to end users through their own networks.
The Chilean Telecommunications Law provides for substantial fines, the
suspension of service and other penalties for violations of the multicarrier
dialing system. The routing of calls by a local telephone company to a long
distance carrier other than the carrier selected by the end user or the
obstruction or delay of an interconnection between the local telephone carrier
and any long distance carrier would constitute violations, and the local
telephone carrier may be required to indemnify the provider of long distance
services for any such violations.
CONCESSIONS. The Chilean Telecommunications Law specifies which
telecommunications services require that a provider obtain a concession or
permit from the Ministry of Transportation and Telecommunications. Such
concessions or permits are granted by the Subsecretaria de Telecommunicaciones
(the "Undersecretary of Telecommunications"). Concessions, which may be granted
only to entities constituted and domiciled in Chile, are necessary to provide
the following services, among others: (i) public telecommunications services
which are provided to satisfy the telecommunications needs of the general
public and (ii) intermediate telecommunications services which are transmission
and switching services offered by third parties to other concession holders who
provide public telecommunications services or other services to end-users.
Permits, which are granted following a simplified procedure and may have a
shorter duration than concessions, are required to provide limited services,
which are services necessary to satisfy specialized needs of businesses or
other institutions, but do not entail carrying traffic across public
international and certain telecommunications networks.
Concessions and permits are granted by the Chilean government for a fixed
term which is presently 30 years. These concessions and permits can be renewed
for the same period if so requested by the concessionaire. However, because the
Company's concession was granted before the establishment of fixed terms, such
concession is deemed to be indefinite in accordance with its terms and with
Transitory Article 3 of such law. Concessions and permits cannot be assigned,
transferred or leased without the prior authorization of the Undersecretary of
Telecommunications, which authorization cannot be denied without reasonable
cause.
Holders of concessions to provide public telecommunications services must
establish and accept interconnection with others, in accordance with technical
requirements established by the Undersecretary of Telecommunications, to ensure
that users have access to all public services. Concession holders may establish
their own systems or use facilities of other entities.
Any telephone service outage must be corrected within 12 hours or users
are entitled to indemnification and the concession holder is subject to fines.
The Undersecretary of Telecommunications may suspend a concession holder's
service for up to thirty days for failure to comply with technical
requirements, which action may be challenged in the courts within a term of
five days as of the notification to the holder of the concession.
The Chilean Telecommunications Law provides that holders of concessions
and permits shall have access, on equal economic and technical basis, to
satellite systems and international cables.
Existing concessions may be terminated if the concession holder does not
fulfill certain of its obligations, including: (i) fulfillment of the technical
framework applicable to the service; (ii) reiterative sanctions because of the
suspension of transmissions; (iii) nonpayment of a fine imposed on the
concession holder for more than 30 days; and (iv) the unauthorized change of
any of the essential elements of the concession. The holder of the concession
can appeal such termination to the Chilean Supreme Court within ten days if it
believes that the termination was illegal.
TARIFF SYSTEM. Currently, providers of domestic and international long
distance services are subject to maximum tariffs fixed by the Chilean
government.
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The Company's services are presently subject to maximum tariffs under the
Chilean Telecommunications Law. The Chilean government establishes the maximum
tariffs of regulated services by using a methodology that provides for the
recovery of investments and the costs of operations of such services, as well
as a profit based on the cost of capital. Under the Chilean Telecommunications
Law, the structure, level and mechanism for indexing the affected services are
fixed every five years by a joint decree issued by the Ministry of
Transportation and Telecommunications and the Ministerio de Economia, Fomento y
Reconstruccion (the "Ministry of the Economy") on the basis of the incremental
costs of providing the tariffed service in each geographical service area where
the service is provided, including capital costs taking into account the
expansion plans of the regulated companies over the five year period. In the
absence of expansion plans, the structure and level of rates are set on the
basis of marginal long-term costs. Maximum tariffs are established on the basis
of an economic model that relies on the costs of an ideally efficient
enterprise that offers only the service subject to tariff. The tariff for each
service that is subject to tariff regulation reflects the theoretical cost
components associated with such service.
Tariffs for domestic long distance telephone services must include the
prices of long distance transmission and switching as well as the price of
local telephone service. Tariffs for international long distance services must
include such price components as the price of domestic and international
services, the cost of access to the local network, as well as the settlement
costs with foreign correspondents.
Providers of telecommunications services are prohibited from
discriminating among similarly situated users in the price charged for tariffed
services. Each tariff is subject to its own index, which is calculated using
the prices of its principal components. A concessionaire must give two months
notice to the Undersecretary of Telecommunications of changes to the maximum
tariff resulting from changes in the applicable index (including inflation
adjustments) and that tariff, upon readjustment, is the maximum price that
users may be charged for the service.
Because the tariff-setting process takes place every five years, providers
of long distance services subject to tariff regulation have to prepare a
special study for each regulated service included in their geographic
concession areas. The purpose of the study is to calculate the total and
marginal long-term costs with respect to each such service and to determine on
the basis of such calculation the structure and level of future tariffs. New
tariff proposals must be presented to the Ministries of Transportation and
Telecommunications and of Economy 180 days prior to the end of each five-year
period. The Company and other intermediate service providers are subject to the
maximum tariffs established by the corresponding authorities for the principal
intermediate service provider.
ENCAJE OR DEPOSIT REQUIREMENT. Thirty percent of amounts borrowed from
abroad must be placed on deposit with the Central Bank for a period equal to
the average term of the loan, with a minimum period of 90 days and a maximum
period of 1 year. These funds do not earn interest. In lieu of making this
deposit, the recipient may comply with the encaje through the purchase of
special Central Bank promissory notes equal to 30% of the principal, which the
Central Bank repurchases on the same date, prior to deduction of an interest
rate equal to LIBOR + 4% for one year. In addition to the 30% deposit
requirement, payments made by a Chilean company on interest in connection with
a loan by a foreign shareholder of such company are treated as dividends for
purposes of the imposition of a 35% withholding tax on the value of the payment
of interest.
FOREIGN INVESTMENT AND EXCHANGE CONTROLS. Complete foreign ownership of
investments in Chilean entities is possible and there is no minimum period
within which the foreign investments must remain in Chile. Foreign investment
capital may be remitted overseas one year after entering Chile.
The Central Bank requires most transactions relating to foreign investment
to be effected in a "formal" currency market. Appropriate approvals and
registrations must be obtained when foreign investment capital enters the
country to ensure the right to acquire foreign currency to pay for imports,
repatriate capital and profits and pay interest and capital due on foreign
currency loans.
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Foreign investment capital may be remitted overseas one year after
entering Chile, but only from the proceeds of sale or liquidation of all or
part of the assets, business, shares or rights representing the investment.
Capital comprising reinvested profits are not subject to the one year
restriction.
Annual profits may be remitted overseas at any time. Interim profits and
dividends can be remitted quarterly if supported by audited financial
statements and permitted by the foreign investment contract with the
government.
Normally, foreign currency required to repatriate capital and profits must
be obtained in the local formal currency market. Certificates authorizing the
purchase of the foreign currency are issued by the Foreign Investment
Committee, normally within 48 hours in the case of profits. Investors may be
able to operate offshore foreign currency accounts which may be used to
repatriate capital profits directly.
The Foreign Investment Statute guarantees that restrictions applicable to
the remittance of capital and profits will not be less favorable than those
applying generally to the acquisition of foreign currency to pay for imports.
TAXATION
PERU
The tax structure of Peru is composed of several broad based taxes, a
consumption tax on certain products (e.g. gasoline), a general income tax, an
alternative minimum tax based on a business' assets, a property tax, and a
simplified import tariff. In addition, withholding taxes are imposed on
interest and salary income, and Peru has a recently expanded value-added tax
("VAT") that covers certain products and services.
INCOME TAX. Peruvian corporations or foreign corporations domiciled in
Peru are subject to an income tax at a rate of 30% on the net income realized
by the company during the fiscal year. There is no departmental, regional or
municipal income tax.
PAYMENT OF DIVIDENDS. Under applicable Peruvian law, amounts paid as
dividends or distributed as profits are not deemed to be taxable income and,
consequently, are not subject to any taxation.
EXTRAORDINARY ASSET TAX. Peruvian corporations are subject to an annual
extraordinary asset tax calculated at a rate of 0.5% over the value of the net
assets of the corporation. The amount of the net extraordinary asset tax which
is due may be credited against the corporation's income tax.
VALUE ADDED TAX. Peruvian corporations are subject to a value added tax
calculated at a rate of 18% over the value of services rendered to customers,
goods imported into Peru, sale of personal or real property and assignment of
fixed assets to an affiliate. Companies are entitled to an off-setting credit
against the value added taxes imposed on the sales of goods and services.
CHILE
TAXATION. Generally, foreign investors and local businesses are treated
equally, although foreign investors are given the benefit of certain fixed rate
tax options which allow them to limit the impact of future adverse tax changes.
To promote savings and investment, the income of business entities is
taxed in two stages, initially when income is earned and finally when profits
are distributed to the ultimate business owners. The effective rate payable on
foreign investment profits remitted abroad is normally 35%, 15% being payable
at the time profits are earned with the balance due on payment overseas.
Considerable emphasis is placed on indirect taxation through a 18% value-added
tax which contributes about 60% of fiscal revenue.
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First Category Income Tax (the "First Category Income Tax"), often
referred to as the corporate tax, is paid by all entities on accrued income
from business operations at a rate of 15%. Chile has a fully integrated tax
system allowing this corporate tax to be credited against personal income taxes
payable by resident investors when business profits are withdrawn by them or,
in the case of foreign investors, against withholding tax payable when profits
are remitted overseas. Profit distributions received by a resident business
entity as an investor in another business entity are not liable to tax until
distributed to a non-business or overseas entity.
WITHHOLDING TAX. Additional withholding income tax (the "Additional
Withholding Income Tax") of 35% is payable by non-resident individuals and
entities on Chilean-source business income withdrawn or remitted overseas. This
tax is withheld by the paying business entity.
The 15% corporate tax is allowed as a credit against the Additional
Withholding Income Tax payable. As a result, the effective rate payable on
foreign investment profits remitted abroad is normally 35%, 15% being payable
at the time profits are earned with the 20% balance due on payment overseas.
Withholding tax is also imposed on most other payments made abroad. For
example:
1. 30% for royalty payments and patents, license and similar fees;
2. 4% for interest payments to a foreign or international banking
institution or to a foreign or international financial institution
registered with the Central Bank of Chile. A 35% rate applies to
interest payments to all other entities;
3. 35% for rental payments, this rate can be reduced to 1.75% for
equipment rental payments; and
4. 20% withholding tax applied to remuneration of foreign individuals not
resident in Chile for "technical assistance" or "engineering services"
rendered in Chile or abroad.
These rates can be increased to 80% for royalties or fees for technical
services considered unproductive or unnecessary for the economic development of
the country. All these payments are tax deductible if necessary to produce
income.
THIN CAPITALIZATION RULES. Although the tax regime does not impose
restrictions on debt/equity ratios, the Foreign Investment Committee currently
limits borrowing levels when approving investments. The current debt to equity
ratio is 70:30.
CAPITAL GAINS. Gain recognized on the sale of shares will be subject to
both the First Category Income Tax and the Additional Withholding Income Tax,
if either (i) the foreign holder has held the shares for less than one year or
(ii) the foreign holder acquired and sold the shares in the ordinary course of
business or as an habitual trader of shares. In all other cases, gain on the
sale of shares will be subject to a sole 15% First Category Income Tax.
For purposes of determining the capital gains on the disposition of the
shares of the Chilean companies, the tax basis will be the acquisition value
adjusted by the variation of the Chilean Consumer Price Index between the last
day of the month prior to the purchase of the shares and the last day of the
month prior to the disposition of the shares. If the investment in the shares
has been made through DL 600, upon total or partial liquidation of the
investment, no taxes will be applied on gains up to the U.S. dollar equivalent
of the foreign investment.
INCOME TAX PAYMENT. Chile has a calendar tax year and returns must be
lodged by April 30 of the following year. Business entities are required to
make monthly provisional payments of corporate tax equal to a percentage of the
previous month's gross revenue. The percentage is determined by the ratio of
gross revenue to First Category Income Tax for the business entity for the
preceding year. Any further tax due must be paid on filing of the relevant tax
return. Excess tax paid is recoverable after filing.
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EMPLOYEES
As of August 3, 1998, the Company had 220 full-time employees, of whom
approximately 102 are in Resetel, 46 are in FirstCom Networks, 66 are in
FirstCom Long Distance and six are in the Company's headquarters. The Company's
employees are not represented by any labor union. The Company believes that
relations with its employees are good.
PROPERTIES
ICCA's corporate offices are located at 2600 Douglas Road Suite 501, Coral
Gables, Florida. These offices are occupied under a lease that expires on
November 30, 1998 (the "ICCA Lease") at a rent of approximately $3,000 per
month. The ICCA Lease does not specify the conditions for its renewal, but the
Company believes that the current lease may be renewed for an additional one
year term without unreasonable effort or additional expense. The Company's
offices in Santiago, Chile are occupied under a lease which expires in
September 2006, at a rent of approximately $14,000 per month. The Company's
offices in Lima, Peru are occupied under a two year lease terminating on
October 14, 1998 at a rent of approximately $3,500 per month. The Company
believes that its current facilities, together with other contiguous rental
space, are adequate to provide for its current needs and that its current
facilities and planned lease of replacement facilities in Chile will be
adequate for its current and anticipated needs and anticipated growth.
LEGAL PROCEEDINGS
The Company is not a party to any material legal proceedings.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth certain information concerning each of the
executive officers and directors of ICCA:
<TABLE>
<CAPTION>
NAME AGE POSITION WITH THE COMPANY
- ----------------------- ----- --------------------------------------------------
<S> <C> <C>
Patricio E. Northland 42 President, Chairman of the Board of Directors and
Chief Executive Officer
Douglas G. Geib II 41 Chief Financial Officer and Director
David C. Kleinman 62 Director
George A. Cargill 56 Director
Andrew Hulsh 37 Director
</TABLE>
PATRICIO E. NORTHLAND has over sixteen years of experience as an
international telecommunications executive and entrepreneur. Mr. Northland has
been President, Chairman of the Board of Directors and Chief Executive Officer
of ICCA since November 1996. Born in Chile, Mr. Northland is a U.S. citizen who
brings to the Company many relationships with telecommunications carriers and
potential customers throughout Latin America. In 1991, Mr. Northland founded
AmericaTel Corporation ("AmericaTel"), a Miami-based international
telecommunications carrier focused on traffic originating and terminating in
Latin America, and in 1993, Mr. Northland successfully completed a joint
venture agreement between AmericaTel and Entel, Chile's major long distance
carrier. Under Mr. Northland's leadership, AmericaTel grew to provide
satellite-based voice, data and fax telecommunications services to corporate
customers in several Latin American nations. Prior to his involvement with
AmericaTel, Mr. Northland held key management positions with PanamSat and
IntelSat. In 1996, Mr. Northland sold his interest in AmericaTel to Entel. Mr.
Northland holds engineering degrees from the University of Chile, a master's
degree in communications from George Washington University, and an M.B.A. from
The University of Chicago.
DOUGLAS G. GEIB II has been the Chief Financial Officer and a Director of
ICCA since May 1997. For almost 20 years prior thereto, Mr. Geib worked with
Ernst & Young LLP and had been a Partner since 1989. While at Ernst & Young,
Mr. Geib provided corporate finance and audit services, as well as coordinated
and managed various consulting services to clients involved in
telecommunications, healthcare, manufacturing, real estate and consumer
products. Mr. Geib holds an undergraduate business degree from The Ohio State
University and an M.B.A. from The University of Chicago. Mr. Geib is a
Certified Public Accountant.
DAVID C. KLEINMAN has been a Director of ICCA since May 1997. Mr. Kleinman
is currently Senior Lecturer in Business Policy at the Graduate School of
Business of The University of Chicago where he has taught since 1971. Mr.
Kleinman serves as a member of the Board of Directors of Irex Corporation which
trades its stock in the over-the-counter market. Mr. Kleinman is also a member
of the Board of Directors of the Acorn Fund, the Acorn International Fund and
the Acorn USA Fund which are registered under the Investment Company Act of
1940.
GEORGE A. CARGILL has been a Director of ICCA since July 1994. Mr. Cargill
has been the President and owner of Telectronic S.A., a major Chilean systems
integrator and the Northern Telecom equipment distributor in Chile since 1976.
Prior thereto, Mr. Cargill spent seven years with CTC as a network engineer and
manager of quality control.
ANDREW HULSH has been a director of ICCA since December 1997. Mr. Hulsh
has been a partner with the law firm of Baker & McKenzie since January 1997.
For more than five years prior thereto, Mr. Hulsh was an attorney with the law
firm of Greenberg, Trauig, Hoffman, Lipoff, Rosen & Quentel, P.A. most recently
as a shareholder.
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KEY EMPLOYEES OR CONSULTANTS
Moises Blumen Cohen, age 28, has been the Chief Executive Officer of
Resetel since October 1996 and its Administrative Manager since August 1996.
From July 1993 until July 1996, Mr. Blumen was President of Compania Central
911, a Peruvian security alarm installation company founded by Mr. Blumen in
July 1993.
Ivan Van de Wyngard, age 53, has been a consultant to the Company since
October 1997. From 1986 to 1994, Mr. Van de Wyngard was Chief Executive Officer
of Entel. From 1995 to August 1997, Mr. Van de Wyngard was President of
Consultora Internacional de Telecommunicaciones VamCon Ltda., a Chilean
telecommunications consulting company.
COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors of the Company has an Audit Committee and a
Compensation Committee. The members of each committee have been appointed by
the Board of Directors to serve until their respective successors are elected
and qualified.
AUDIT COMMITTEE. The Audit Committee reviews the scope and results of the
audit of the financial statements of the Company and reviews the internal
accounting, financial and operating control procedures of the Company. The
Audit Committee also recommends the appointment of auditors and oversees the
accounting and audit functions of the Company. The Audit Committee is currently
composed of Messrs. Kleinman and Cargill, all of whom, in accordance with the
rules of the Nasdaq SmallCap Market, is independent of management and free from
any relationship that, in the opinion of the Board of Directors, would
interfere with the exercise of independent judgment as a committee member.
COMPENSATION COMMITTEE. The Compensation Committee determines the cash and
other incentive compensation to be paid to the Company's executive officers,
including the award of stock options under the Company's stock option plans as
well as the award of non-qualified stock options and warrants issued pursuant
to individual stock option and warrant agreements. The Compensation Committee
is composed of Messr. Kleinman who is a "disinterested person" within the
meaning of Rule 16b-3 under the Exchange Act.
DIRECTORS COMPENSATION
Each non-employee director of ICCA, or of any of its subsidiaries, is
entitled to be paid such compensation for his services and reimbursed for such
expenses as fixed by ICCA's Board of Directors. Currently, non-employee
directors of ICCA are entitled to receive annual compensation consisting of
$20,000 per year (beginning January 1, 1998) stock options to acquire 50,000
shares of Common Stock at a price calculated on the average closing price of
the Common Stock for the five trading days immediately preceding the date of
such grant.
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EXECUTIVE COMPENSATION
The following table sets forth certain information regarding the annual
compensation earned by the Chief Executive Officer of ICCA, and the other most
highly compensated executive officer of ICCA during 1997 (such persons are
hereinafter referred to as the "Named Executive Officers").
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
-----------------------------------------
ANNUAL COMPENSATION AWARDS PAYOUTS
---------------------------------- ------------------------------- ---------
OTHER RESTRICTED SECURITIES
ANNUAL STOCK UNDERLYING LTIP ALL OTHER
NAME AND SALARY BONUS COMPENSATION AWARDS OPTIONS PAYOUTS COMPENSATION
PRINCIPAL POSITION(S) YEAR ($) ($) ($)(1) ($) (#) ($) ($)(1)
- -------------------------- ------ --------- --------- -------------- ------------ ------------------ --------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Patricio E. Northland 1997 300,000 630,000 -- -- 1,614,000(2) -- --
Chairman of the Board, 1996 50,000 -- -- -- 1,000,000 -- --
President and CEO(2) 1995 -- -- -- -- -- -- --
Douglas G. Geib II(3) 1997 166,667 170,000 -- -- 1,036,000 -- --
Chief Financial Officer 1996 -- -- -- -- -- -- --
1995 -- -- -- -- -- -- --
</TABLE>
- ----------------
(1) Perquisites to each officer did not exceed the lesser of $50,000 or 10% of
the total salary and bonus for any officer.
(2) Effective as of November 23, 1996.
(3) Mr. Geib commenced employment with the Company on May 1, 1997. See "--
Employment and Consultants Agreements."
The following table sets forth certain information concerning options
granted in 1997 to ICCA's Named Executive Officers. The Company has no
outstanding stock appreciation rights. None of the Named Executive Officers
exercised options during 1997.
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
-----------------------------------------------------------
POTENTIAL REALIZED
VALUE AT ASSUMED
NUMBER OF % OF ANNUAL RATES OF
SECURITIES TOTAL OPTIONS STOCK PRICE APPRECIATION
UNDERLYING GRANTED TO FOR OPTION TERM
OPTIONS EMPLOYEES EXERCISE PRICE EXPIRATION --------------------------
NAME GRANTED(#) IN FISCAL YEAR PER SHARE($/SH) DATE 5%($) 10%($)
- ------------------------------- ------------ ---------------- ----------------- ----------- ----------- --------------
<S> <C> <C> <C> <C> <C> <C>
Patricio E. Northland ......... 1,614,000 57% $ 3.85 Oct. 2007 3,907,000 9,903,000
Douglas G. Geib II ............ 1,036,000 36% $ 2.90 Oct. 2007 1,889,000 4,788,000
</TABLE>
The following table sets forth information with respect to ICCA's Named
Executive Officers concerning the exercise of options during 1997 and
unexercised options held as of the end of 1997.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION
VALUES
<TABLE>
<CAPTION>
VALUE OF
NUMBER OF SECURITIES UNEXERCISED
UNDERLYING IN-THE-MONEY
UNEXERCISED OPTIONS OPTIONS AT
AT FY-END(#) FY-END($)
----------------------- --------------
SHARES ACQUIRED VALUE EXERCISABLE/ EXERCISABLE/
NAME ON EXERCISE(#) REALIZED($) UNEXERCISABLE UNEXERCISABLE
- ------------------------------- ----------------- ------------- ----------------------- --------------
<S> <C> <C> <C> <C>
Patricio E. Northland ......... -- -- 1,538,000 / 1,076,000 -- / --
Douglas G. Geib, II ........... -- -- 345,000 / 691,000 -- / --
</TABLE>
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EMPLOYMENT AND CONSULTANTS AGREEMENTS
In September 1997, the Company entered into an employment and severance
agreement (the "Northland Agreement") with Patricio E. Northland, President,
Chief Executive Officer and Chairman of the Board of Directors of the Company,
which replaced his former employment agreement with the Company. The Northland
Agreement has a term of three years unless terminated earlier for cause, death
or disability, and provides for an initial annual base salary of $350,000,
subject to an increase of $50,000 in each of the second and third year of the
agreement. In addition, Mr. Northland was granted non-qualified stock options
to purchase 300,000 shares of ICCA's Common Stock in the following manner:
100,000 shares which vest on the date of employment at an exercise price of
$4.00 per share; 100,000 shares which vest one year thereafter at an exercise
price of $6.00 per share; and 100,000 shares which vest two years after the
date of employment at an exercise price of $8.00 per share. In consideration of
Mr. Northland's agreement to terminate his former employment agreement with the
Company, which would have provided for a $750,000 bonus to Mr. Northland upon
consummation of the Initial Offering, the Company agreed to pay Mr. Northland a
performance bonus of $250,000 and vest all of his existing options to acquire
1,000,000 shares of Common Stock granted under his prior employment agreement.
During May 1997, the Company entered into an employment and severance
agreement (the "Geib Agreement") with Douglas G. Geib II, Chief Financial
Officer of ICCA. The Geib Agreement has a term of three years unless terminated
earlier for cause, death or disability, and provides for an annual salary of
$250,000. In addition to the base salary, the Geib Agreement provides for a
primary performance award based upon business criteria which is designed to
enhance shareholder value during each year up to a maximum of 100 percent of
the base salary payable thereunder. Mr. Geib was also granted non-qualified
stock options to purchase 500,000 shares of ICCA's Common Stock at an exercise
price of $2.42 per share. One-third of such options became exercisable on date
of employment, and the remainder vest in equal annual installments over the
first two years of Mr. Geib's three-year employment period.
During October 1997, the Company entered into an agreement with Mr. Ivan
Van de Wyngard (the "Van de Wyngard Agreement") for the performance of certain
management, consulting and advisory services to the Company. Under the Van de
Wyngard Agreement, Mr. Van de Wyngard will receive a monthly fee of $7,500 as
compensation for his services. The Van de Wyngard Agreement has a term of one
year and may be extended upon mutual agreement between the parties.
STOCK OPTIONS
As of August 3, 1998 ICCA has outstanding options to purchase 7,490,000
shares of Common Stock.
During 1996, 2,060,000 stock options were granted by ICCA to its executive
officers and directors. On May 29, 1997, the Board of Directors of ICCA granted
stock options in an aggregate amount of 200,000 shares of Common Stock to Mr.
Kleinman of which 50,000 shares vested on May 29, 1997 and the remainder vest
in equal annual installments over a three year period. During September 1997,
ICCA agreed to grant the following stock options to the following officers of
ICCA at an exercise price of $2.13 per share, the then market value of the
Common Stock: (i) Patricio E. Northland, President, Chief Executive Officer and
Chairman, was granted options to acquire 600,000 shares; and (ii) Douglas G.
Geib II, Chief Financial Officer and a director of ICCA, was granted options to
acquire 250,000 shares. In addition, in October 1997, ICCA agreed upon
consummation of the Initial Offering to grant options to acquire an additional
714,000 and 286,000 shares to Mr. Northland and Mr. Geib, respectively, at an
exercise price of $4.40 per share. See "Certain Relationships and Related Party
Transactions."
LIMITATION OF DIRECTORS' AND OFFICERS' LIABILITY AND INDEMNIFICATION
ICCA's Articles of Incorporation and By-laws contain certain provisions
that eliminate the liability of its directors and officers to the fullest
extent permitted by the Texas Business Corporation Act,
81
<PAGE>
except that they do not eliminate liability for: (i) any breach of the duty of
loyalty to the Company or its shareholders; (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
(iii) an act or omission for which the liability of a director is expressly
provided by an applicable statute; or (iv) any transaction from which the
director derived an improper personal benefit. The Texas Business Corporation
Act provides that Texas corporations may indemnify any director, officer or
employee made or threatened to be made a party to a proceeding, by reason of
the former or present official capacity of such person, if such person (i)
conducted himself in good faith and (ii) reasonably believed that his conduct
was in the corporation's best interests or, in the case of any criminal
proceeding, that his conduct was not unlawful and opposed to the corporation's
best interests. The indemnification provision does not permit indemnification
of officers, directors and employees (i) when such persons are found liable to
the corporation or (ii) for any transaction from which such persons derive
improper personal benefits. The foregoing provisions may reduce the likelihood
of derivative litigation against directors, officers and employees of the
Company and may discourage or deter shareholders or management from bringing a
lawsuit against directors and officers for breaches of their fiduciary duties,
even though such an action, if successful, might otherwise have benefited the
Company and its shareholders.
The Company has entered into an indemnification agreement with each
director (an "Indemnitee"). Pursuant to the indemnification agreement, the
Company will indemnify an Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by the
agreement, ICCA's Articles of Incorporation and By-laws, or statute. In
addition, the Company will indemnify each Indemnitee against any and all
expenses incurred in connection with claims relating to the fact that such
Indemnitee is or was a director, officer, employee, agent or fiduciary of the
Company or any subsidiary of the Company, and the Company will advance all such
expenses. The Company maintains directors' and officers' liability insurance.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling ICCA
pursuant to the foregoing provisions, ICCA has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and therefore unenforceable.
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<PAGE>
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
TELECTRONIC S.A. AND MR. HERNAN STREETER
During the three years ended December 31, 1997, the Company entered into
certain transactions with Telectronic S.A. and its founders, Mr. George A.
Cargill and Mr. Eleazar Donoso. Mr. Cargill and Mr. Donoso are both Company
shareholders. Mr. Cargill is also a current director of the Company.
During the three years ended December 31, 1997 the Company entered into
several transactions with Mr. Hernan Streeter. Mr. Streeter formerly served the
Company as its Chief Executive Officer and its Chairman of the Board. In
addition, he is a principal shareholder of the Company. The Company paid
salaries to Mr. Streeter of $120,000 and $110,000 during 1995 and 1996,
respectively.
From 1994 to 1996 the Company granted Mr. Cargill 290,000 stock options
with a weighted average exercise price of $2.09.
The Company purchased approximately $205,000, $172,000 and $77,000 of
certain telecommunication equipment in 1995, 1996 and 1997, respectively, from
Teletronic, S.A. During 1997 the Company issued and redeemed $200,000 of bridge
notes from Mr. Cargill. In connection with such bridge notes Mr. Cargill
received 20,000 warrants to purchase the Company's common stock at an exercise
price of $2.56 per warrant.
From 1994 to 1996 the Company granted Mr. Streeter 510,000 stock options
with a weighted average exercise price of $1.91, respectively.
On July 24, 1995, Mr. Donoso received 1,425,000 shares of Common Stock
(the "Donoso Shares") from the Company in exchange for his ownership interest
in HSI, a company which was acquired by the Company, in a transaction which was
exempt from the registration requirements of the Securities Act pursuant to
Regulation S and Section 4(2) thereof. On September 14, 1995, Mr. Donoso loaned
the Donoso Shares to Laura Investments, Ltd., a company owned and controlled by
Mr. Streeter.
From September 14, 1995 to March 1996, Laura Investments, Ltd. loaned the
Company an aggregate amount of $1,631,550. During March 1996, the Company
converted the original principal amount of $1,631,550, plus accrued interest of
$7,000 into 839,235 shares of Common Stock which were registered in the name of
Laura Investments, Ltd. and issued in a transaction which was exempt from the
registration requirements of the Securities Act pursuant to Regulation S and
Section 4(2) thereof.
During September 1997, Laura Investments Ltd. agreed to transfer 839,235
shares of the Company's Common Stock to Mr. Donoso in an attempt to satisfy its
obligatons to Mr. Donoso in connection with the transfer of the Donoso Shares
to Laura Investments, Ltd. which occurred on September 14, 1995. However, Mr.
Donoso claimed that the Company owed him additional shares of Common Stock in
consideration of the initial transaction between Mr. Donoso and Laura
Investments Ltd. on September 14, 1995 (or the equivalent monetary
consideration). The Company issued 300,000 shares of Common Stock to Mr. Donoso
in October 1997 in settlement of all outstanding claims by Mr. Donoso against
the Company. The Company recognized interest expense of $852,000 related to the
aggregate fair value of such shares of Common Stock issued to Mr. Donoso. This
transaction was exempt from the registration requirements of the Securities Act
pursuant to Sections 4(2) and 4(6) thereof.
Mr. Streeter was the founder and Chief Executive Officer of Hewster, which
was acquired by the Company during 1996. Prior to its acquisition, Hewster
provided approximately $237,000 of telecommunications services to the Company.
Mr. Streeter also was the primary shareholder and General Manager of FirstCom
Long Distance, which was acquired by the Company during 1997. Prior to this
acquisition, the Company made sales of $162,000 to FirstCom Long Distance.
Pursuant to provisions of the FirstCom Long Distance purchase agreement, the
Company agreed to pay Mr. Streeter a consulting fee of $120,000 during 1998.
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<PAGE>
MAROON BELLS CAPITAL PARTNERS ("MBCP")
During the three years ended December 31, 1997 the Company entered into
certain transactions with MBCP. Two former directors of the Company, Paul Moore
and Phillip Magiera, are principals in MBCP. MBCP has provided certain
consulting and financial advisory services to the Company during the past three
years.
From 1994 to 1996, the Company granted MBCP and its principals 1,015,000
stock options with a weighted average exercise price of $2.12.
During 1995, the Company recognized $100,000 as a financial advisory fee
to MBCP. During 1996, the Company purchased $493,000 in equipment whereby MBCP
acted as a broker.
During 1996 and 1997, the Company converted $316,000 plus accrued interest
of $30,000 and $240,000, respectively, of outstanding liabilities to MBCP into
172,506 and 80,000 shares, respectively, of the Company's Common Stock. The
value assigned to the Common Stock during (i) 1996 was determined by the
Company's Board of Directors based on similar transactions (E.G., private
placements) and (ii) 1997 was based on the NASDAQ trading price.
During October 1997, the Company entered into an agreement with MBCP and
its principals, Theodore Swindells, Paul Moore and Phillip Magiera, to
compensate them for services rendered to the Company. Pursuant to such
agreement, the Company made a cash payment to MBCP of $500,000 at the closing
of the Senior Note offering and issued to each of Messrs. Moore and Magiera
250,000 shares of Common Stock and options to acquire 250,000 shares of Common
Stock at an exercise price of $2.13 per share. The Company recognized non-cash
consulting expense related to (i) the grant date fair value of the Common Stock
of approximately $1,420,000 and (ii) the intrinsic value of the stock options
of approximately $355,000. The fair value of such common stock and the
intrinsic value of such stock options was based on the Common Stock's grant
date NASDAQ trading price. Messrs. Moore and Magiera resigned from the
Company's board of Directors effective as of the date of the agreement.
OTHER RELATED PARTY TRANSACTIONS
The Company paid approximately $865,000 in legal fees in 1997 to Baker &
McKenzie. Andrew Hulsh is a Senior Partner of Baker & McKenzie and a director
of the Company.
In connection with the FirstCom Long Distance Acquisition, the Company
issued to Mr. Silva, a former director of the Company, a fee in the aggregate
amount of 100,000 shares of Common Stock for his services in facilitating the
transaction. A value of $200,000 was assigned to such Common Stock equivalent
to the grant date market price.
During September 1997, ICCA's Board of Directors ratified the issuance of
the following shares of Common Stock to the following officers of ICCA: (i)
600,000 shares of Common Stock to Patricio E. Northland, President, Chief
Executive Officer and Chairman of the Board and (ii) 250,000 shares of Common
Stock to Douglas G. Geib II, Chief Financial Officer of ICCA. No cash
consideration was paid by either officer for such shares. The Company
recognized non-cash compensation expense of approximately $1,650,000 and
$688,000 representing the grant date fair value of the aforementioned 600,000
and 250,000 shares of Common Stock, respectively. In addition, on the same
date, the Company granted the following stock options to the following officers
of ICCA at an exercise price of $2.13 per share: (i) Patricio E. Northland,
President, Chief Executive Officer and Chairman of the Board, was granted
options to acquire 600,000 shares of Common Stock, one-third of which vested
immediately and the remainder in equal annual installments over the next two
years; and (ii) Douglas G. Geib II, Chief Financial Officer and a director of
ICCA, was granted options to acquire 250,000 shares of Common Stock, one third
of which vested immediately and the remainder vest in equal annual installments
over the next two years. The Company recognized non-cash compensation expense
of approximately $372,000 and $155,000, representing the grant date intrinsic
value of the aforementioned 600,000 and
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250,000 stock options, respectively. In addition, in October 1997, ICCA agreed
upon consummation of the Offering to grant options to acquire an additional
714,000 and 286,000 shares to Mr. Northland and Mr. Geib, respectively, at an
exercise price of $4.40 per share--One third of such options vested immediately
and the remainder vest in equal annual installments over the next two years.
The strike price of such options exceeded the grant date fair value of the
underlying common stock. As such the options had no intrinsic value and no
related compensation expense was recorded.
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DESCRIPTION OF SENIOR NOTES
The Existing Notes were, and the New Notes will be, issued under the
Indenture, dated as of October 27, 1997, between the Company and the Trustee. A
copy of the Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The following summary of certain
provisions of the Indenture does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, all the provisions of the
Indenture, including the definitions of certain terms therein and those terms
made a part thereof by reference to the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). For definitions of certain capitalized terms used
in "Description of the Senior Notes," see "--Certain Definitions."
GENERAL
The Existing Notes were, and the New Notes will be, issued pursuant to an
Indenture between the Company and the Trustee. The terms of the Existing Notes
and Senior Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act. The Existing Notes and
New Notes are subject to all such terms, and holders of Existing Notes and New
Notes are referred to the Indenture and the Trust Indenture Act for a statement
thereof. The following summary of the material provisions of the Indenture does
not purport to be complete and is qualified in its entirety by reference to the
Indenture, including the definitions therein of certain terms used below.
Copies of the proposed form of Indenture, Proceeds Pledge and Escrow Agreement
and Registration Rights Agreement will be made available to prospective
investors as set forth under "Available Information." The definitions of
certain terms used in the following summary are set forth below under
"--Certain Definitions." For purposes of this "Description of Senior Notes,"
the term "Company" refers only to InterAmericas Communications Corporation and
not to any of its Subsidiaries.
RANKING
The New Notes will rank senior in right of payment to all subordinated
Indebtedness of the Company incurred in the future, if any. The Senior Notes
will rank equal in right of payment to all senior Indebtedness of the Company
incurred in the future, if any. The Senior Notes will be secured by a first
priority pledge pursuant to the Proceeds Pledge and Escrow Agreement of (1) the
"Pledged Securities," which initially consist of Government Securities, and the
"Pledge Account," which will be released to the Company upon payment in full of
the first six scheduled interest payments due on the Senior Notes and (2) the
Collateral Funds and placed in the Collateral Account to be held by the
Trustee, as Collateral Agent (the "Collateral Agent"), pending application of
such funds by the Company for the payment of (a) Permitted Expenditures, (b) in
the event of a Change of Control, the Change of Control Payment and (c) in the
event of a Special Offer to Purchase or a Special Mandatory Redemption, the
purchase or redemption price in connection therewith. See "--Proceeds Pledge
and Escrow Agreement."
The operations of the Company are conducted through its Subsidiaries and,
therefore, the Company is dependent upon the cash flow of its Subsidiaries to
meet its obligations, including its obligations under the Senior Notes. The
ability of the Company's Subsidiaries to make payments will be subject to,
among other things, the terms of such Subsidiaries' Indebtedness, the
availability of such funds and the applicable laws of the jurisdictions under
which such Subsidiaries are organized.
The Obligations under the Senior Notes will be effectively subordinated to
all Indebtedness and other liabilities and commitments (including trade
payables and lease obligations) of the Company's Subsidiaries.
Any right of the Company to receive assets of any of its Subsidiaries upon
the latter's liquidation or reorganization (and the consequent right of the
holders of the Existing Notes and New Notes to participate in those assets)
will be effectively subordinated to the claims of that Subsidiary's creditors,
except to the extent that the Company is itself recognized as a creditor of
such Subsidiary, in which case
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the claims of the Company would still be subordinate to any security in the
assets of such Subsidiary and any Indebtedness of such Subsidiary senior to
that held by the Company. As of March 31, 1998, the Company's Subsidiaries have
approximately $548,000 of Indebtedness and $3.5 million of trade payables and
other liabilities outstanding. In addition, under the Indenture, the Company's
Subsidiaries will be permitted to incur certain additional Indebtedness the
terms of which may restrict the ability of the Company's Subsidiaries to pay
dividends to the Company. See "Risk Factors--Limitations on Access to Cash Flow
of Subsidiaries; Holding Company Structure" and "--Certain
Covenants--Incurrence of Indebtedness and Issuance of Preferred Stock."
PRINCIPAL MATURITY AND INTEREST
The Senior Notes will be limited to $150.0 million in aggregate principal
amount and will mature on October 27, 2007. Interest on the Senior Notes will
accrue at the rate of 14% per annum and will be payable in cash semi-annually
on April 27 and October 27 (each, an "Interest Payment Date"), commencing on
April 27, 1998 to holders of record on the immediately preceding April 12 and
October 12. Interest on the Senior Notes will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the date
of original issuance. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. The Existing Notes and New Notes will be
payable as to principal, interest and Liquidated Damages, if any, at the office
or agency of the Company maintained for such purpose within the City and State
of New York or, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the holders of the
Existing Notes and New Notes at their respective addresses set forth in the
register of holders of Existing Notes and New Notes; provided that all payments
with respect to Existing Notes and New Notes the holders of which have given
wire transfer instructions to the Company will be required to be made by wire
transfer of same day funds to the accounts specified by the holders thereof.
Until otherwise designated by the Company, its office or agency in New York
will be the office of the Trustee maintained for such purpose. The Existing
Notes and New Notes will be issued in registered form, without coupons, and in
denominations of $1,000 and integral multiples thereof.
PROCEEDS PLEDGE AND ESCROW AGREEMENT
Pursuant to the Proceeds Pledge and Escrow Agreement, upon the closing of
the Initial Offering, the Company purchased and pledged to the Trustee for the
benefit of the holders of the Existing Notes and New Notes the Pledged
Securities in such amount as is sufficient upon receipt of scheduled interest
and principal payments of such securities, in the opinion of a nationally
recognized firm of independent public accountants selected by the Company, to
provide for payment in full of the first six scheduled interest payments due on
the Existing Notes and New Notes. The Company used approximately $63.0 million
of the net proceeds of the Initial Offering to acquire the Pledged Securities.
The Pledged Securities were pledged by the Company to the Trustee for the
benefit of the holders of Existing Notes and New Notes pursuant to the Proceeds
Pledge and Escrow Agreement and are being held by the Trustee in the Pledge
Account. Pursuant to the Proceeds Pledge and Escrow Agreement, immediately
prior to an interest payment date on the Existing Notes and New Notes, the
Company may either deposit with the Trustee from funds otherwise available to
the Company cash sufficient to pay the interest scheduled to be paid on such
date or the Company may direct the Trustee to release from the Pledge Account
proceeds sufficient to pay interest then due. In the event that the Company
exercises the former option, the Company may thereafter direct the Trustee to
release to the Company proceeds or Pledged Securities from the Pledge Account
in like amount. A failure by the Company to pay interest on the Existing Notes
and New Notes within five days of an Interest Payment Date through October 27,
2000 will constitute an immediate Event of Default under the Indenture.
Interest earned on the Pledged Securities will be added to the Pledge
Account. In the event that the funds or Pledged Securities held in the Pledge
Account exceed the amount sufficient, in the opinion of a nationally recognized
firm of independent public accountants selected by the Company, to provide for
payment in full of the first six scheduled interest payments due on the
Existing Notes and New Notes (or, in the event an interest payment or payments
have been made, an amount sufficient to
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provide for payment in full of any interest payments remaining, up to and
including the sixth scheduled interest payment) the Trustee will be permitted
to release to the Company at the Company's request any such excess amount. The
Existing Notes and New Notes will be secured by a first priority security
interest in the Pledged Securities and in the Pledge Account and, accordingly,
the Pledged Securities and the Pledge Account will also secure all Obligations
of the Company under the Existing Notes and New Notes and the Indenture to the
extent of such security.
Under the Proceeds Pledge and Escrow Agreement, if the Company makes the
first six scheduled interest payments on the Existing Notes and New Notes in a
timely manner, all of the remaining Pledged Securities, if any, will be
released from the Pledge Account and thereafter the Existing Notes and New
Notes will be secured only by the Collateral Funds and the Collateral Account
described below to the extent that Collateral Funds remain in the Collateral
Account pursuant to the terms of the Proceeds Pledge and Escrow Agreement.
In addition to the pledge by the Company of the Pledged Securities, the
Proceeds Pledge and Escrow Agreement required the Company to (i) deposit $62.0
million of the net proceeds of the Initial Offering in an account under the
Trustee's exclusive dominion and control pending application of such funds by
the Company for the payment of (a) Permitted Expenditures, (b) in the event of
a Change of Control, the Change of Control Payment and (c) in the event of a
Special Offer to Purchase or a Special Mandatory Redemption, the purchase or
redemption price in connection therewith and (ii) grant to the Trustee, as
Collateral Agent, for the benefit of holders of the Existing Notes and New
Notes and itself as Trustee, a first priority security interest in the
Collateral Funds and the Collateral Account securing all Obligations of the
Company under the Existing Notes and New Notes and the Indenture. The
Collateral Funds are required to be invested in Cash Equivalents, as directed
from time to time by the Company. The Company will be permitted to obtain
release of the Collateral Funds as follows: (a) any amount of Collateral Funds
for Permitted Expenditures, (b) in the event of a Change of Control, the Change
of Control Payment and (c) in the event of a Special Offer to Purchase or a
Special Mandatory Redemption, the purchase or redemption price in connection
therewith; provided that at least 60% of the aggregate amount of Collateral
Funds released from the Collateral Account for Permitted Expenditures must be
released in connection with Acquisition Costs or Systems Costs directly related
to Telecommunications Businesses in Peru.
The Proceeds Pledge and Escrow Agreement allows the Company to withdraw
from the Collateral Account such amounts as are estimated by the Company in
good faith and set forth in a written request (as such request may be amended
from time to time), accompanied by a supporting budget or other supporting
documentation, submitted to the Collateral Agent to be necessary for Permitted
Expenditures for the succeeding three months.
In the event that on or after October 27, 2000 Collateral Funds remain in
the Collateral Account, the Company shall make an offer to each holder of
Existing Notes and New Notes to repurchase all or any part (equal to $1,000 or
an integral multiple thereof) of such holder's Existing Notes and New Notes at
an offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest thereon to the date of purchase and Liquidated
Damages, if any; provided that, if after the Special Offer to Purchase is
consummated at least $20.0 million in aggregate principal amount of Existing
Notes and New Notes does not remain outstanding, the Company will be required
by the terms of the Indenture to redeem all of the Existing Notes and New Notes
at a redemption price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase. If required by the terms of the Indenture to
make a Special Offer to Purchase, the Company will mail a notice to each holder
offering to repurchase Existing Notes and New Notes in the Special Offer to
Purchase pursuant to the procedures required by the Indenture and described in
such notice. If required by the terms of the Indenture, within ten days
following the consummation of the Special Offer to Purchase, the Company will
mail a notice to each holder setting forth the terms of the Special Mandatory
Redemption pursuant to the procedures required by the Indenture and described
in such notice. The Company will comply with the
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requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the Special Offer to Purchase.
In the event that the Indenture does not require the Company to make a
Special Mandatory Redemption, after the consummation of the Special Offer to
Purchase, the Company shall apply all funds held in the Collateral Account not
previously released pursuant to the terms of the Indenture and the Proceeds
Pledge and Escrow Agreement, at its option, to the acquisition of a controlling
interest in a Permitted Business, the making of a capital expenditure or the
acquisition of other assets, in each case, in a Permitted Business or to the
reduction of senior Indebtedness of the Company or Indebtedness of any
Restricted Subsidiary of the Company.
In the event of the Company's bankruptcy, the Company, as a debtor in
possession under Chapter 11 of the Bankruptcy Code, would be entitled to
petition the United States Bankruptcy Court having jurisdiction over its case
for permission, under Section 363 of the Bankruptcy Code, to use the Pledged
Securities pledged by it pursuant to the Proceeds Pledge and Escrow Agreement
and the Collateral Funds pledged by it pursuant to the Proceeds Pledge and
Escrow Agreement to fund its operations during the pendency of the
reorganization proceedings. Permission for such use is likely to be granted so
long as the interests of the Trustee, as Collateral Agent, for the benefit of
the holders of Existing Notes and New Notes and itself as Trustee, are
"adequately protected." A secured creditor's interest in cash collateral to be
used by a debtor in possession may be adequately protected by, among other
means, the granting of liens on substitute collateral which may be
substantially less liquid than Cash Equivalents and Government Securities. See
"Risk Factors--Effect of Bankruptcy on Ability to Realize Upon Security."
OPTIONAL REDEMPTION
The Senior Notes will not be redeemable at the Company's option prior to
October 27, 2002. Thereafter, the Senior Notes will be subject to redemption at
any time at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on October 27 of the
years indicated below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
- ------------------------------------ -------------
<S> <C>
2002 ......................... 107.000%
2003 ......................... 104.666%
2004 ......................... 102.333%
2005 and thereafter .......... 100.000%
</TABLE>
Notwithstanding the foregoing, at any time on or before October 27, 2000,
the Company may on any one or more occasions redeem up to a maximum of 331/3%
of the aggregate principal amount of Existing Notes and New Notes at a
redemption price equal to 114% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the redemption
date, with the net cash proceeds received by the Company after the date of the
Indenture from the issuance and sale of its Qualified Capital Stock to the
public in a registered public offering or to one or more Strategic Equity
Investors to the extent that such net cash proceeds have been, and continue to
be, designated as Designated Equity Proceeds to be used for such purpose as
provided in the definition thereof; provided that at least 662/3% of the
original aggregate principal amount of the Existing Notes and New Notes remain
outstanding immediately after the occurrence of each such redemption; and
provided, further, that such redemption shall occur within 45 days of the date
of the closing of any such public offering or sale to such Strategic Equity
Investors.
SELECTION AND NOTICE
If less than all of the Existing Notes and New Notes are to be redeemed at
any time, selection of Existing Notes and New Notes for redemption will be made
by the Trustee in compliance with the
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requirements of the principal national securities exchange, if any, on which
the Existing Notes and New Notes are listed, or, if the Existing Notes and New
Notes are not so listed, on a pro rata basis, by lot or by such method as the
Trustee shall deem fair and appropriate; provided that no Existing Notes and
New Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days
before the redemption date to each holder of Existing Notes and New Notes to be
redeemed at its registered address. Notices of redemption may not be
conditional. If any Senior Note is to be redeemed in part only, the notice of
redemption that relates to such Senior Note shall state the portion of the
principal amount thereof to be redeemed. A new Senior Note in principal amount
equal to the unredeemed portion thereof will be issued in the name of the
holder thereof upon cancellation of the original Senior Note. Existing Notes
and New Notes called for redemption become due on the date fixed for
redemption. On and after the redemption date, interest ceases to accrue on
Existing Notes and New Notes or portions of them called for redemption.
MANDATORY REDEMPTION
Except as set forth above under "--Proceeds Pledge and Escrow Agreement"
and as set forth below under "--Repurchase at the Option of Holders," the
Company is not required to make mandatory redemption or sinking fund payments
with respect to the Existing Notes and New Notes.
REPURCHASE AT THE OPTION OF HOLDERS
CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each holder of New Notes will
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such holder's Senior Notes pursuant
to the offer described below (the "Change of Control Offer") at an offer price
in cash equal to the Change of Control Payment. Within ten days following any
Change of Control, the Company will mail a notice to each holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Senior Notes on the Change of Control Payment Date, which date
shall be no earlier than 30 days and no later than 60 days from the date such
notice is mailed, pursuant to the procedures required by the Indenture and
described in such notice. The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Senior Notes as a result of a Change of Control.
On the Change of Control Payment Date, the Company will, to the extent
lawful, (i) accept for payment all Senior Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (ii) deposit with the paying
agent an amount equal to the Change of Control Payment in respect of all Senior
Notes or portions thereof so tendered and (iii) deliver or cause to be
delivered to the Trustee the Senior Notes so accepted together with an
Officers' Certificate stating the aggregate principal amount of Senior Notes or
portions thereof being purchased by the Company. The paying agent will promptly
mail to each holder of Senior Notes so tendered the Change of Control Payment
for such Senior Notes, and the Trustee will promptly authenticate and mail (or
cause to be transferred by book entry) to each holder a new Senior Note equal
in principal amount to any unpurchased portion of the Senior Notes surrendered,
if any; provided that each such new Senior Note will be in a principal amount
of $1,000 or an integral multiple thereof. The Company will publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.
The Change of Control provisions described above will be applicable
whether or not any other provisions of the Indenture are applicable. Except as
described above with respect to a Change of Control, the Indenture does not
contain provisions that permit the holders of the Senior Notes to require that
the Company repurchase or redeem the Senior Notes in the event of a takeover,
recapitalization or similar transaction.
The definition of Change of Control includes a phrase relating to the
sale, lease, transfer, conveyance or other disposition of (a) "all or
substantially all" of the assets of the Company and its
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Restricted Subsidiaries taken as a whole and (b) "all or substantially all" of
the assets of the Company and its Restricted Subsidiaries taken as a whole that
are related or ancillary to the business conducted by the Company and its
Restricted Subsidiaries in Peru. Although there is a developing body of case
law interpreting the phrase "substantially all," there is no precise
established definition of the phrase under applicable law. Accordingly, the
ability of a holder of Senior Notes to require the Company to repurchase such
Senior Notes as a result of a sale, lease, transfer, conveyance or other
disposition of less than (a) all of the assets of the Company and its
Restricted Subsidiaries taken as a whole or (b) all of the assets of the
Company and its Restricted Subsidiaries taken as a whole that are related or
ancillary to the business conducted by the Company and its Restricted
Subsidiaries in Peru to another Person or group may be uncertain and may
require that a court of law determine whether a Change of Control has occurred.
The terms of any Indebtedness incurred by the Company's Subsidiaries and
the applicable laws of the jurisdictions under which the Company's Subsidiaries
are organized may restrict the Company's current and future Subsidiaries from
paying any dividends or making any other distribution to the Company. Thus, in
the event a Change of Control occurs, the Company could seek the consent of its
Subsidiaries' lenders to the purchase of the Senior Notes or could attempt to
repay or refinance the borrowings that contain such restrictions. If the
Company did not obtain such a consent or repay or refinance such borrowings or
if the applicable laws of the jurisdictions under which the Company's
Subsidiaries are organized restrict such Subsidiaries' ability to pay dividends
or make other distributions to the Company, the Company would likely not have
the financial resources to purchase the Senior Notes and the Subsidiaries would
be restricted in paying dividends to the Company for the purpose of such
purchase. In addition, any future Indebtedness may prohibit the Company from
purchasing Senior Notes prior to their maturity, and may also provide that
certain change of control events with respect to the Company would constitute a
default thereunder. In the event a Change of Control occurs at a time when the
Company is prohibited from purchasing Senior Notes, the Company could seek the
consent of its lenders to the purchase of Senior Notes or could attempt to
repay or refinance the borrowings that contain such prohibition. If the Company
did not obtain such consent or repay or refinance such borrowings, the Company
would remain prohibited from purchasing Senior Notes. In such event, the
Company would be required to seek to refinance the Senior Notes or such other
borrowings, and there can be no assurance that the Company would be able to
consummate any such refinancing. See "Risk Factors--Substantial Leverage;
Ability to Service Indebtedness" and "--Holding Company Structure; Inability to
Access Cash Flow."
The Company will not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in the Indenture applicable to a Change of Control Offer made by the
Company and purchases all Existing Notes and New Notes validly tendered and not
withdrawn under such Change of Control Offer.
ASSET SALES
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the
Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of and (ii) at least 80% of the
consideration therefor received by the Company or such Restricted Subsidiary is
in the form of cash; provided that the amount of (x) any liabilities (as shown
on the Company's or such Restricted Subsidiary's most recent balance sheet) of
the Company or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Existing Notes and New
Notes or any guarantee thereof) that are assumed by the transferee of any such
assets or Equity Interests pursuant to a customary novation agreement that
releases the Company or such Restricted Subsidiary from further liability and
(y) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are immediately converted
by the
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Company or such Restricted Subsidiary into cash (to the extent of the cash
received), shall be deemed to be cash for purposes of this provision.
Within 270 days after the Company's or any Restricted Subsidiary's receipt
of any Net Proceeds from an Asset Sale, the Company or such Restricted
Subsidiary may apply such Net Proceeds, at its option, (a) to repay
Indebtedness under a Credit Facility (and to correspondingly reduce commitments
with respect thereto in the case of revolving borrowings) or (b) to the
acquisition of a Permitted Business or a controlling interest in a Permitted
Business or the making of a capital expenditure or the acquisition of other
long-term assets, in each case, in a Permitted Business. Pending the final
application of any such Net Proceeds, the Company may temporarily reduce
Indebtedness under any Credit Facility or otherwise invest such Net Proceeds in
any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the first sentence of
this paragraph will be deemed to constitute excess proceeds ("Excess
Proceeds"). When the aggregate amount of Excess Proceeds exceeds $5.0 million,
the Company will be required to make an offer to all holders of Existing Notes
and New Notes (an "Asset Sale Offer") to purchase the maximum principal amount
of Existing Notes and New Notes that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon, to the date of purchase, in accordance with the procedures set
forth in the Indenture. To the extent that the aggregate principal amount of
Existing Notes and New Notes tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Existing Notes
and New Notes surrendered by holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Existing Notes and New Notes to be
purchased on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
CERTAIN COVENANTS
RESTRICTED PAYMENTS
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay
any dividend or make any other payment or distribution on account of the
Company's or any of its Restricted Subsidiaries' Equity Interests (including,
without limitation, any payment in connection with any merger or consolidation
involving the Company) to the direct or indirect holders of the Company's or
any of its Restricted Subsidiaries' Equity Interests in their capacity as such
(other than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or such Restricted Subsidiary or dividends
or distributions payable to the Company or any Wholly Owned Restricted
Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company or any direct or
indirect parent of the Company; (iii) make any payment on or with respect to,
or purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Existing Notes and New Notes, except a
payment of interest or principal at Stated Maturity; or (iv) make any
Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect to such Restricted
Payment:
(a) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness (other than Permitted
Debt) pursuant to the Debt to Cash Flow Ratio test set forth in the first
paragraph of the covenant described below under the caption "--Incurrence
of Indebtedness and Issuance of Preferred Stock;" and
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(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments declared or made after the date of Indenture
(other than Restricted Payments permitted by clauses (ii), (iii) or (iv) of
the following paragraph) shall not exceed, at the date of determination,
the sum of (i) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first
fiscal quarter commencing after the date of the Indenture to the end of the
Company's most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, if
such Consolidated Net Income for such period is a deficit, less 100% of
such deficit), plus (ii) an amount equal to the net cash proceeds received
by the Company after the date of the Indenture from the issuance and sale
of its Qualified Capital Stock to the extent such net cash proceeds have
been, and continue to be, designated as Designated Equity Proceeds to be
added to the cumulative amount calculated pursuant to this clause (c) as
provided in the definition thereof, plus (iii) an amount equal to the net
cash proceeds received by the Company from the sale of Disqualified Stock
or debt securities of the Company that have been converted into Equity
Interests (other than Equity Interests or convertible debt securities sold
to a Subsidiary of the Company and other than Disqualified Stock or
convertible debt securities that have been converted into Disqualified
Stock), plus (iv) to the extent that any Restricted Investment that was
made after the date of the Indenture is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (1) the cash return of capital
with respect to such Restricted Investment (less the cost of disposition,
if any) and (2) the initial amount of such Restricted Investment.
The foregoing provisions will not prohibit the following Restricted
Payments: (i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of the Indenture; (ii) the redemption, repurchase,
retirement, defeasance or other acquisition of any subordinated Indebtedness or
Equity Interests of the Company in exchange for, or out of the net cash
proceeds (other than any such net cash proceeds that constitute Designated
Equity Proceeds) of the substantially concurrent sale (other than to a
Subsidiary of the Company) of, other Equity Interests of the Company (other
than any Disqualified Stock); provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (c)(ii) of the
preceding paragraph; (iii) the defeasance, redemption, repurchase or other
acquisition of subordinated Indebtedness with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any
dividend by a Subsidiary of the Company to the holders of its common Equity
Interests on a pro rata basis; (v) the payment of cash (in lieu of the issuance
of fractional shares of Common Stock) to holders of Warrants at the time of
exercise of such Warrants as required by the terms of the warrant agreement
entered into in connection with the Initial Offering; (vi) the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Company or any Restricted Subsidiary of the Company held by any member
of the Company's (or any of its Restricted Subsidiaries') management pursuant
to any management equity subscription agreement, stock option agreement or
other similar agreement; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests shall not exceed
$250,000 in any twelve-month period and no Default or Event of Default shall
have occurred and be continuing immediately after such transaction; and (vii)
any payments specifically described in this Prospectus under the caption "Use
of Proceeds."
The amount of all Restricted Payments (other than cash) shall be the Fair
Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by the covenant "Restricted Payments" were computed, together with a
copy of any fairness opinion or appraisal required by the Indenture.
The Board of Directors may designate any Restricted Subsidiary (other than
any Subsidiary of the Company that owns all or a material portion of the assets
(i) owned by the Company or any Subsidiary
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of the Company on the date of the Indenture or (ii) owned by any Person
described in this Prospectus under the caption "The FirstCom Long Distance
Acquisition" on the date of the acquisition by the Company of such Person) to
be an Unrestricted Subsidiary if such designation would not cause a Default.
For purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash)
in the Subsidiary so designated will be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for Restricted
Payments under the first paragraph of this covenant. All such outstanding
Investments will be deemed to constitute Investments in an amount equal to the
fair market value of such Investments at the time of such designation. Such
designation will only be permitted if such Restricted Payment would be
permitted at such time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Indenture provides that the Company will not, and will not permit any
of its Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "incur") any Indebtedness (including
Acquired Debt) and that the Company will not issue any Disqualified Stock and
will not permit any of its Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Debt) and the Company may issue shares of Disqualified Stock if the Company's
Debt to Cash Flow Ratio would have been no greater than 5.5 to 1, in the case
of any such incurrence or issuance on or before December 31, 2000, or no
greater than 5.0 to 1, in the case of any such incurrence or issuance at any
time thereafter, in each case, determined on a pro forma basis (including a pro
forma application of the net proceeds thereof), as if the additional
Indebtedness had been incurred, or the Disqualified Stock had been issued, as
the case may be, at the beginning of the applicable four full fiscal quarter
period.
The Indenture also provides that the Company will not incur any
Indebtedness that is contractually subordinated to any other Indebtedness of
the Company unless such Indebtedness is also contractually subordinated to the
Existing Notes and New Notes on substantially identical terms; provided,
however, that no Indebtedness of the Company shall be deemed to be
contractually subordinated to any other Indebtedness of the Company solely by
virtue of being unsecured.
The provisions of the first paragraph of this covenant will not apply to
the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company or its Restricted Subsidiaries of
Indebtedness under Credit Facilities; provided that the aggregate principal
amount of all Indebtedness (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the Company
thereunder) outstanding under all Credit Facilities after giving effect to
such incurrence, including all Permitted Refinancing Indebtedness incurred
to refund, refinance or replace any other Indebtedness incurred pursuant to
this clause (i), does not exceed an amount equal to $40.0 million less the
aggregate amount of all Net Proceeds of Asset Sales that have been applied
since the date of the Indenture to repay Indebtedness under Credit
Facilities (or any such Permitted Refinancing Indebtedness) pursuant to the
covenant described above under the caption "--Repurchase at the Option of
Holders--Asset Sales;" provided, further, that the aggregate principal
amount of Indebtedness at any one time outstanding under Credit Facilities
that is incurred by, or secured by the Capital Stock or assets of, any
Restricted Subsidiary that is located, or that derives substantially all of
its revenue from the conduct of business, in Peru shall not exceed $15.0
million;
(ii) the incurrence by the Company and its Restricted Subsidiaries of the
Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the
Existing Notes and New Notes;
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(iv) the incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness in connection with the acquisition of assets or a new
Restricted Subsidiary; provided that such Indebtedness was incurred by the
prior owner of such assets or such Subsidiary prior to such acquisition by
the Company or such Restricted Subsidiary and was not incurred in
connection with, or in contemplation of, such acquisition by the Company or
such Restricted Subsidiary; and provided further that the principal amount
(or accreted value, as applicable) of such Indebtedness (or accreted value,
as applicable), including all Permitted Refinancing Indebtedness incurred
to refund, refinance or replace any other Indebtedness incurred pursuant to
this clause (iv), does not exceed $5.0 million at any time outstanding;
(v) Indebtedness of the Company not to exceed, at any one time
outstanding, two times the sum of (A) the Current Market Value as of the
date of issue of any Qualified Capital Stock of the Company issued to the
seller(s) of a Permitted Business as consideration for the acquisition of
such business and (B) the net cash proceeds received by the Company after
the date of the Indenture from the issuance and sale of its Qualified
Capital Stock to the extent that such net cash proceeds have been, and
continue to be, designated as Designated Equity Proceeds to be used for the
purpose of incurring additional Indebtedness pursuant to this clause (v) as
provided in the definition thereof; provided that, to the extent that any
such Qualified Capital Stock ceases to be outstanding for any reason, any
Indebtedness that was incurred as a result of the receipt of net cash
proceeds from the issuance of such Qualified Capital Stock shall cease (as
of the date on which such Qualified Capital Stock ceases to be outstanding)
to be permitted by virtue of this clause (v);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the net proceeds
of which are used to refund, refinance or replace Indebtedness (other than
intercompany Indebtedness or Indebtedness pursuant to a Credit Facility)
that was permitted by the Indenture to be incurred;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries
of intercompany Indebtedness between or among the Company and any of its
Wholly Owned Restricted Subsidiaries; provided, however, that (A) if the
Company is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Existing Notes and New Notes and (B)(1) any subsequent
issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Wholly
Owned Restricted Subsidiary and (2) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Wholly Owned
Restricted Subsidiary shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be;
(viii) the guarantee by the Company of Indebtedness of the Company or a
Restricted Subsidiary of the Company that was permitted to be incurred by
another provision of this covenant;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt; provided, however, that if any such Indebtedness ceases
to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company;
(x) Indebtedness of the Company or any Restricted Subsidiary of the
Company (A) in respect of statutory obligations, performance, surety or
appeal bonds or other obligations of a like nature incurred in the ordinary
course of business or (B) under Hedging Obligations; provided that such
agreements (1) are designed solely to protect the Company or its Restricted
Subsidiaries against fluctuations in foreign currency exchange rates or
interest rates and (2) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities
and compensation payable thereunder; and
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(xi) the incurrence by the Company of additional Indebtedness in an
aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any other Indebtedness incurred pursuant to
this clause (xi), not to exceed $5.0 million.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xi) above or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Company shall, in its sole discretion, classify such item of Indebtedness in
any manner that complies with this covenant and such item of Indebtedness will
be treated as having been incurred pursuant to only one of such clauses or
pursuant to the first paragraph hereof. Accrual of interest and the accretion
of accreted value will not be deemed to be an incurrence of Indebtedness for
purposes of this covenant.
SALE AND LEASEBACK TRANSACTIONS
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, enter into any sale and leaseback
transaction; provided that the Company may enter into a sale and leaseback
transaction if (i) the Company could have (a) incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and leaseback
transaction pursuant to the Debt to Cash Flow Ratio test set forth in the first
paragraph of the covenant described above under the caption "--Incurrence of
Indebtedness and Issuance of Preferred Stock" and (b) incurred a Lien to secure
such Indebtedness pursuant to the covenant described below under the caption
"--Liens," (ii) the gross cash proceeds of such sale and leaseback transaction
are at least equal to the fair market value of the property that is the subject
of such sale and leaseback transaction and (iii) the transfer of assets in such
sale and leaseback transaction is permitted by, and the Company applies the
proceeds of such transaction in compliance with, the covenant described above
under the caption "--Repurchase at the Option of Holders--Asset Sales."
LIENS
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien on any asset now owned or hereafter
acquired, or any income or profits therefrom or assign or convey any right to
receive income therefrom, except Permitted Liens.
DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary to (i)(a) pay dividends or make any
other distributions to the Company or any of its Restricted Subsidiaries (1) on
its Capital Stock or (2) with respect to any other interest or participation
in, or measured by, its profits, or (b) pay any indebtedness owed to the
Company or any of its Restricted Subsidiaries, (ii) make loans or advances to
the Company or any of its Restricted Subsidiaries or (iii) transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (a)
the terms of any Permitted Debt permitted to be incurred by any Restricted
Subsidiary of the Company, (b) Existing Indebtedness as in effect on the date
of the Indenture or by reason of any agreement or instrument in effect on the
date of the Indenture, (c) the Indenture and the Existing Notes and New Notes,
(d) applicable law or regulation, (e) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such
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Indebtedness was permitted by the terms of the Indenture to be incurred, (f) by
reason of customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices, (g) purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the nature described in clause (iii) above on the
property so acquired, (h) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive than those contained in the agreements
governing the Indebtedness being refinanced, (i) any mortgage or other Lien on
real property acquired or improved by the Company or any Restricted Subsidiary
after the date of the Indenture that prohibit transfers of the type described
in (iii) above with respect to such real property, (j) any such customary
encumbrance or restriction contained in a security document creating a
Permitted Lien to the extent related to the property or assets subject to such
Permitted Lien, and (k) with respect to a Restricted Subsidiary, an agreement
that has been entered into for the sale or disposition of all or substantially
all of the Company's Equity Interests in, or substantially all of the assets
of, such Restricted Subsidiary.
MERGER, CONSOLIDATION, OR SALE OF ASSETS
The Indenture provides that the Company may not consolidate or merge with
or into (whether or not the Company is the surviving corporation), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially
all of its properties or assets in one or more related transactions, to another
corporation, Person or entity unless (i) the Company is the surviving
corporation or the entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia; (ii) the entity or
Person formed by or surviving any such consolidation or merger (if other than
the Company) or the entity or Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Existing Notes and New Notes and the
Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee; (iii) immediately after such transaction no
Default or Event of Default exists; (iv) such transaction will not result in
the loss or suspension or material impairment of any licenses or other
authorizations that are material to the future prospects of the Company and its
Subsidiaries, taken as a whole; and (v) except in the case of a merger of the
Company with or into a Wholly Owned Subsidiary of the Company or into a parent
corporation the principal purpose of which transaction is to change the state
of incorporation of the Company, the Company or the entity or Person formed by
or surviving any such consolidation or merger (if other than the Company), or
to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made (A) will have Consolidated Net Worth
immediately after the transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (B) will, at the
time of such transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt to Cash Flow Ratio test set forth in the first paragraph
of the covenant described above under the caption "--Incurrence of Indebtedness
and Issuance of Preferred Stock."
TRANSACTIONS WITH AFFILIATES
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each of the foregoing, an
"Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms
that are no less favorable to the Company or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person and (ii) the
Company delivers to the Trustee (a) with respect to any Affiliate Transaction
or series of related Affiliate Transactions involving aggregate consideration
in excess of $250,000, (1) a resolution of the Board of Directors set forth in
an Officers' Certificate
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certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors or (2) an opinion as to the
fairness to the holders of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing and (b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $2.0
million, an opinion as to the fairness to the holders of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal
or investment banking firm of national standing; provided that (w) the FirstCom
Long Distance Acquisition, (x) any employment agreement entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of
business having terms consistent with industry practice for reasonably similar
companies, (y) transactions between or among the Company and/or its Restricted
Subsidiaries and (z) Restricted Payments that are permitted by the provisions
of the Indenture described above under the caption "--Certain
Covenants--Restricted Payments," in each case, shall not be deemed Affiliate
Transactions.
LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF THE COMPANY
The Indenture provides that the Company will not transfer, convey, sell,
lease or otherwise dispose of any Equity Interest of the Company to any Person
unless the consideration received therefor is at least equal to the Fair Market
Value of such Equity Interests and all of such consideration is in the form of
cash.
The provisions of the first paragraph of this covenant does not apply to:
(i) the transfer, conveyance, sale, lease or other disposition of all or
substantially all of the Equity Interests of the Company; provided that the
transfer, conveyance, sale, lease or other disposition of all or
substantially all of the Equity Interest of the Company will be governed by
the provisions of the Indenture described above under the caption
"--Repurchase at the Option of Holders--Change of Control" and/or the
provisions described above under the caption "--Merger, Consolidation or
Sale of Assets" and not by the provisions of this covenant;
(ii) the transfer, conveyance, sale, lease or other disposition of Equity
Interests of the Company in exchange for long-term assets used or useful in
a Permitted Business or a controlling interest in a Permitted Business;
provided that the Company delivers to the Trustee (a) with respect to any
such transfer, conveyance, sale, lease or other disposition or series of
related transfers, conveyances, sales, leases or other dispositions
involving Equity Interests with a fair market value less than $5.0 million,
a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such transfer, conveyance, sale, lease or other
disposition is fair to the Company's shareholders and (b) with respect to
any such transfer, conveyance, sale, lease or other disposition or series
of related transfers, conveyances, sales, leases or other dispositions
involving Equity Interests with a fair market value equal to or in excess
of $5.0 million, an opinion as to the fairness to the Company's
shareholders of such transfer, conveyance, sale, lease or other disposition
from a financial point of view issued by the Initial Purchaser or any other
investment banking firm of national standing chosen by the Company; and
(iii) (A) the grant or issuance of options, warrants or other rights to
acquire Capital Stock of the Company ("Options") pursuant to a stock option
plan which (a) shall have been approved by the Company's stockholders, (b)
shall prohibit the granting of Options prior to June 30, 1998 (other than
to directors or employees of the Company or any Subsidiary of the Company
appointed or hired subsequent to the date of the Indenture), (c) shall
limit the aggregate number of shares of common stock of the Company
issuable in any fiscal year upon the exercise of Options to 1.0 million
(subject to adjustments for stock splits and other customary events) and
(d) shall provide that any Option must have an exercise price equal to or
in excess of the market price for the underlying common stock of the
Company on the date such Option is granted by the Company and (B) the
issuance of Capital Stock of the Company upon the exercise of any such
Option.
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LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF WHOLLY OWNED RESTRICTED
SUBSIDIARIES
The Indenture provides that the Company (i) will not, and will not permit
any Wholly Owned Restricted Subsidiary of the Company to, transfer, convey,
sell, lease or otherwise dispose of any Equity Interest of any Wholly Owned
Restricted Subsidiary of the Company to any Person (other than the Company or a
Wholly Owned Restricted Subsidiary of the Company), unless (a) such transfer,
conveyance, sale, lease or other disposition is of all the Equity Interests of
such Wholly Owned Restricted Subsidiary owned by the Company or any of its
Subsidiaries and (b) the Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with the covenant
described above under the caption "--Repurchase at the Option of Holders--Asset
Sales," and (ii) will not permit any Wholly Owned Restricted Subsidiary of the
Company to issue any of its Equity Interests (other than, if required by
applicable law, shares of Capital Stock (y) constituting directors' qualifying
shares and (z) of non-U.S. Restricted Subsidiaries sold to non-U.S. nationals
as required by the laws of the jurisdiction of incorporation of such non-U.S.
Restricted Subsidiary) to any Person other than to the Company or a Wholly
Owned Restricted Subsidiary of the Company.
LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS BY SUBSIDIARIES
The Indenture provides that the Company will not permit any Subsidiary,
directly or indirectly, to guarantee or pledge any assets to secure the payment
of any other Indebtedness of the Company unless such Subsidiary simultaneously
executes and delivers a supplemental indenture to the Indenture providing for
the guarantee of the payment of the Existing Notes and New Notes by such
Subsidiary, which guarantee shall be senior to or equal with such Subsidiary's
guarantee of or pledge to secure such other Indebtedness. Notwithstanding the
foregoing, any such guarantee by a Subsidiary of the Existing Notes and New
Notes shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon any sale, exchange or transfer, to
any Person not an Affiliate of the Company, of all of the Company's stock in,
or all or substantially all the assets of, such Subsidiary, which sale,
exchange or transfer is made in compliance with the applicable provisions of
the Indenture. A form of such guarantee is attached as an exhibit to the
Indenture.
BUSINESS ACTIVITIES
The Company will not, and will not permit any Restricted Subsidiary to,
engage in any business other than a Permitted Business.
PAYMENTS FOR CONSENT
The Indenture provides that neither the Company nor any of its
Subsidiaries will, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any holder of
any Existing Notes and New Notes for or as an inducement to any consent, waiver
or amendment of any of the terms or provisions of the Indenture or the Existing
Notes and New Notes unless such consideration is offered to be paid or is paid
to all holders of the Existing Notes and New Notes that consent, waive or agree
to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
REPORTS
The Indenture provides that, whether or not required by the rules and
regulations of the Commission, so long as any Existing Notes and New Notes are
outstanding, the Company will furnish to the holders of Existing Notes and New
Notes (i) all quarterly and annual financial information that would be required
to be contained in a filing with the Commission on Form 10-Q or, if the Company
is eligible to file such Form, Form 10-QSB and Form 10-K or, if the Company is
eligible to file such Form, Form 10-KSB if the Company were required to file
such Forms, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual
information only, a report thereon by the Company's certified independent
accountants and (ii) all
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current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports, in each case, within the
time periods set forth in the Commission's rules and regulations. In addition,
commencing after the consummation of the Exchange Offer, whether or not
required by the rules and regulations of the Commission, the Company will file
a copy of all such information and reports with the Commission for public
availability (unless the Commission will not accept such a filing) within the
time periods set forth in the Commission's rules and regulations and make such
information available to securities analysts and prospective investors upon
request. In addition, the Company has agreed that, for so long as any Existing
Notes and New Notes remain outstanding, it will furnish to the holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
EVENTS OF DEFAULT AND REMEDIES
If any Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the then outstanding Existing
Notes and New Notes may declare all the Existing Notes and New Notes to be due
and payable immediately. Upon such declaration, the principal of, premium, if
any, and accrued and unpaid interest and Liquidated Damages, if any, on the
Existing Notes and New Notes shall be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the Company, any
Significant Subsidiary or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary, the foregoing amount shall become due and
payable without further action or notice. Holders of the Existing Notes and New
Notes may not enforce the Indenture or the Existing Notes and New Notes except
as provided in the Indenture. Subject to certain limitations, holders of a
majority in principal amount of the then outstanding Existing Notes and New
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from holders of the Existing Notes and New Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest or Liquidated Damages, if any)
if it determines that withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Existing Notes and New
Notes pursuant to the optional redemption provisions of the Indenture, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Existing Notes and New
Notes. If an Event of Default occurs prior to October 27, 2002 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding the prohibition on redemption of the
Existing Notes and New Notes prior to October 27, 2002, then the premium
specified in the Indenture shall also become immediately due and payable to the
extent permitted by law upon the acceleration of the Existing Notes and New
Notes.
The holders of a majority in aggregate principal amount of the Existing
Notes and New Notes then outstanding by notice to the Trustee may on behalf of
the holders of all of the Existing Notes and New Notes waive any existing
Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of principal or premium,
if any, interest or Liquidated Damages, if any on the Existing Notes and New
Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Existing Notes and New Notes, the Subsidiary
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Guarantees, the Indenture or the Proceeds Pledge and Escrow Agreement or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each holder of Existing Notes and New Notes by accepting a Senior
Note waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Existing Notes and New Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws and
it is the view of the Commission that such a waiver is against public policy.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all of its
obligations discharged with respect to the outstanding Existing Notes and New
Notes ("Legal Defeasance") except for (i) the rights of holders of outstanding
Existing Notes and New Notes to receive payments in respect of the principal
of, premium, if any, and interest and Liquidated Damages, if any, on such
Existing Notes and New Notes when such payments are due from the trust referred
to below, (ii) the Company's obligations with respect to the Existing Notes and
New Notes concerning issuing temporary Existing Notes and New Notes,
registration of Existing Notes and New Notes, mutilated, destroyed, lost or
stolen Existing Notes and New Notes and the maintenance of an office or agency
for payment and money for security payments held in trust, (iii) the rights,
powers, trusts, duties and immunities of the Trustee, and the Company's
obligations in connection therewith and (iv) the Legal Defeasance provisions of
the Indenture. In addition, the Company may, at its option and at any time,
elect to have the obligations of the Company released with respect to certain
covenants that are described in the Indenture ("Covenant Defeasance") and
thereafter any omission to comply with such obligations shall not constitute a
Default or Event of Default with respect to the Existing Notes and New Notes.
In the event Covenant Defeasance occurs, certain events (not including
non-payment, bankruptcy, receivership, rehabilitation and insolvency events)
described under "Events of Default" will no longer constitute an Event of
Default with respect to the Existing Notes and New Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i)
the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the holders of the Existing Notes and New Notes, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of, premium, if any,
and interest and Liquidated Damages, if any, on the outstanding Existing Notes
and New Notes on the stated maturity or on the applicable redemption date, as
the case may be, and the Company must specify whether the Existing Notes and
New Notes are being defeased to maturity or to a particular redemption date;
(ii) in the case of Legal Defeasance, the Company shall have delivered to the
Trustee an opinion of counsel in the United States reasonably acceptable to the
Trustee confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of
the Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion of
counsel shall confirm that, the holders of the outstanding Existing Notes and
New Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred; (iii) in
the case of Covenant Defeasance, the Company shall have delivered to the
Trustee an opinion of counsel in the United States reasonably acceptable to the
Trustee confirming that the holders of the outstanding Existing Notes and New
Notes will not recognize income, gain or loss for federal income tax purposes
as a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred; (iv) no Default or
Event of Default shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit) or insofar as Events of Default from
bankruptcy or insolvency events are concerned, at any time in the period ending
on the 91st day after the date of deposit; (v) such Legal Defeasance or
Covenant Defeasance will not result in a breach or violation of, or constitute
a default under any material agreement or instrument (other than the Indenture)
to which the Company or any of its Restricted Subsidiaries is a party or by
which the Company or any of its
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Restricted Subsidiaries is bound; (vi) the Company must have delivered to the
Trustee an opinion of counsel to the effect that after the 91st day following
the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally; (vii) the Company must deliver to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the holders of Existing Notes and Senior Notes over
the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and (viii) the
Company must deliver to the Trustee an Officers' Certificate and an opinion of
counsel, each stating that all conditions precedent provided for relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.
TRANSFER AND EXCHANGE
A holder may transfer or exchange Senior Notes in accordance with the
Indenture. The Registrar and the Trustee may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company is not required to transfer or exchange
any Senior Note selected for redemption. Also, the Company is not required to
transfer or exchange any Senior Note for a period of 15 days before a selection
of Senior Notes to be redeemed.
The registered holder of a New Note will be treated as the owner of it for
all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next two succeeding paragraphs, the Indenture,
the Existing Notes and New Notes or the Proceeds Pledge and Escrow Agreement
may be amended or supplemented with the consent of the holders of at least a
majority in principal amount of the Existing Notes and New Notes then
outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Existing Notes and
New Notes), and any existing default or compliance with any provision of the
Indenture, the Existing Notes and New Notes or the Proceeds Pledge and Escrow
Agreement may be waived with the consent of the holders of a majority in
principal amount of the then outstanding Existing Notes and New Notes
(including consents obtained in connection with a tender offer or exchange
offer for Existing Notes and New Notes).
Without the consent of each holder affected, an amendment or waiver may
not (with respect to any Existing Notes and New Notes held by a non-consenting
holder): (i) reduce the principal amount of New Notes whose holders must
consent to an amendment, supplement or waiver, (ii) reduce the principal of or
change the fixed maturity of any New Note or alter the provisions with respect
to the redemption of the Existing Notes and New Notes (other than provisions
relating to the covenants described above under the caption "--Repurchase at
the Option of Holders" and certain provisions set forth under the caption
"--Proceeds Pledge and Escrow Agreement"), (iii) reduce the rate of or change
the time for payment of interest on any New Note, (iv) waive a Default or Event
of Default in the payment of principal of or premium, if any, or interest or
Liquidated Damages, if any, on the Existing Notes and New Notes (except a
rescission of acceleration of the Existing Notes and Existing Notes and New
Notes by the holders of at least a majority in aggregate principal amount of
the Existing Notes and New Notes and a waiver of the payment default that
resulted from such acceleration), (v) make any New Note payable in money other
than that stated in the Existing Notes and New Notes, (vi) make any change in
the provisions of the Indenture relating to waivers of past Defaults or the
rights of holders of Existing Notes and New Notes to receive payments of
principal of or premium, if any, or interest or Liquidated Damages, if any, on
the Existing Notes and New Notes, (vii) waive a redemption payment with respect
to any New Note (other than a payment required by one of the covenants
described above under the caption "--Repurchase at the Option of Holders" and
certain provisions set forth under the caption "--Proceeds Pledge and Escrow
Agreement") or (viii) make any change in the foregoing amendment and waiver
provisions. In addition, any amendment to the covenants described under the
caption "--Proceeds Pledge and Escrow Agreement," including the related
definitions will require the
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consent of the holders of at least 75% in aggregate principal amount of the
Existing Notes and New Notes then outstanding if such amendment would adversely
affect the rights of holders of Existing Notes and New Notes.
Notwithstanding the foregoing, without the consent of any holder of
Existing Notes and New Notes, the Company and the Trustee may amend or
supplement the Indenture or the Existing Notes and New Notes to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Existing
Notes and New Notes in addition to or in place of certificated Existing Notes
and New Notes, to provide for the assumption of the Company's obligations to
holders of Existing Notes and New Notes in the case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the holders of Existing Notes and New Notes or that does not
adversely affect the legal rights under the Indenture of any such holder, or to
comply with requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any
such claim as security or otherwise. The Trustee will be permitted to engage in
other transactions; however, if it acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the Commission for permission
to continue or resign.
The holders of a majority in principal amount of the then outstanding
Existing Notes and New Notes will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee, subject to certain exceptions. The Indenture provides that in case an
Event of Default shall occur (which shall not be cured), the Trustee will be
required, in the exercise of its power, to use the degree of care of a prudent
man in the conduct of his own affairs. Subject to such provisions, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request of any holder of Existing Notes and New Notes, unless
such holder shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
ADDITIONAL INFORMATION
Anyone who receives this Prospectus may obtain a copy of the Indenture,
Proceeds Pledge and Escrow Agreement and Registration Rights Agreement without
charge by writing to InterAmericas Communication Corporation, 2600 Douglas
Road, Suite 501, Coral Gables, Florida 33134, Attention: Chief Financial
Officer.
REGISTRATION RIGHTS; LIQUIDATED DAMAGES
The Company and the Initial Purchaser entered into the Registration Rights
Agreement on the Closing Date. Pursuant to the Registration Rights Agreement,
the Company agreed to file with the Commission the Exchange Offer Registration
Statement on the appropriate form under the Securities Act with respect to the
Senior Notes. Upon the effectiveness of the Exchange Offer Registration
Statement, the Company will offer to the holders of Transfer Restricted
Securities pursuant to the Exchange Offer who are able to make certain
representations the opportunity to exchange their Transfer Restricted
Securities for Senior Notes. If (i) the Company is not permitted to consummate
the Exchange Offer because the Exchange Offer is not permitted by applicable
law or Commission policy or (ii) any holder of Transfer Restricted Securities
notifies the Company prior to the 20th day following consummation of the
Exchange Offer that (A) it is prohibited by law or Commission policy from
participating in the Exchange Offer or (B) that it may not resell the Senior
Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales or (C) that it is a
broker-dealer and owns Existing Notes and Senior Notes acquired directly from
the Company or an
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affiliate of the Company, the Company will file with the Commission a Shelf
Registration Statement to cover resales of the Existing Notes and New Notes by
the holders thereof who satisfy certain conditions relating to the provision of
information in connection with the Shelf Registration Statement. The Company
will use its best efforts to cause the applicable registration statement to be
declared effective as promptly as possible by the Commission.
The Registration Rights Agreement provides that (i) the Company will file
an Exchange Offer Registration Statement with the Commission on or prior to 45
days after the Closing Date, (ii) the Company will use its best efforts to have
the Exchange Offer Registration Statement declared effective by the Commission
on or prior to 120 days after the Closing Date, (iii) unless the Exchange Offer
would not be permitted by applicable law or Commission policy, the Company will
commence the Exchange Offer and use its best efforts to issue on or prior to 30
business days after the date on which the Exchange Offer Registration Statement
was declared effective by the Commission, Senior Notes in exchange for all
Existing Notes and New Notes tendered prior thereto in the Exchange Offer and
(iv) if obligated to file the Shelf Registration Statement, the Company will
use its best efforts to file the Shelf Registration Statement with the
Commission on or prior to 45 days after such filing obligation arises and to
cause the Shelf Registration to be declared effective by the Commission on or
prior to 120 days after such obligation arises. If a Registration Default
occurs, then the Company will pay Liquidated Damages to each holder of Existing
Notes, with respect to the first 90-day period immediately following the
occurrence of the first Registration Default in an amount equal to $.05 per
week per $1,000 principal amount of Existing Notes held by such holder. The
amount of the Liquidated Damages will increase by an additional $.05 per week
per $1,000 principal amount of Existing Notes with respect to each subsequent
90-day period until all Registration Defaults have been cured, up to a maximum
amount of Liquidated Damages of $.50 per week per $1,000 principal amount of
Existing Notes. All accrued Liquidated Damages will be paid by the Company on
each Damages Payment Date to the Global Note holder by wire transfer of
immediately available funds or by federal funds check and to holders of
certificated securities by wire transfer to the accounts specified by them or
by mailing checks to their registered addresses if no such accounts have been
specified. Following the cure of all Registration Defaults, the accrual of
Liquidated Damages will cease.
Holders of Existing Notes are required to make certain representations to
the Company (as described in the Registration Rights Agreement) in order to
participate in the Exchange Offer and are required to deliver information to be
used in connection with the Shelf Registration Statement and to provide
comments on the Shelf Registration Statement within the time periods set forth
in the Registration Rights Agreement in order to have their Existing Notes
included in the Shelf Registration Statement and benefit from the provisions
regarding Liquidated Damages set forth above.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Indenture. Reference
is made to the Indenture for a full disclosure of all such terms, as well as
any other capitalized terms used herein for which no definition is provided.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Acquisition Costs" means the purchase price and related expenses of any
acquisition by the Company of (i) long-term assets used or useful in a
Permitted Business or (ii) a controlling interest in a Permitted Business in
connection with Telecommunications Businesses in Chile or Peru.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of
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this definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement
or otherwise; provided that beneficial ownership of 5% or more of the voting
securities of a Person shall be deemed to be control.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback) other than in the ordinary course of business (provided that the
sale, lease, conveyance or other disposition of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole will be governed by
the provisions of the Indenture described above under the caption "--Repurchase
at the Option of Holders--Change of Control" and/or the provisions described
above under the caption "--Certain Covenants--Merger, Consolidation or Sale of
Assets" and not by the provisions of the Asset Sale covenant), and (ii) the
issue or sale by the Company or any of its Subsidiaries of Equity Interests of
any of the Company's Subsidiaries, in the case of either clause (i) or (ii),
whether in a single transaction or a series of related transactions (a) that
have a fair market value in excess of $1.0 million or (b) for net proceeds in
excess of $1.0 million. Notwithstanding the foregoing: (i) a transfer of assets
by the Company to a Wholly Owned Restricted Subsidiary or by a Wholly Owned
Restricted Subsidiary to the Company or to another Wholly Owned Restricted
Subsidiary, (ii) an issuance of Equity Interests by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary,
(iii) a Restricted Payment that is permitted by the covenant described above
under the caption "--Certain Covenants--Restricted Payments," and (iv) sales of
property or equipment that has become worn out, obsolete or damaged or
otherwise unsuitable for use in connection with the business of the Company or
any Restricted Subsidiary, as the case may be, will not be deemed to be Asset
Sales.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank having
capital and surplus in excess of $500 million and a Thompson Bankwatch, Inc.
rating of "B" or better, (iv) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clauses
(ii) and (iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above and (v) commercial paper having
the highest rating obtainable from Moody's Investors Service, Inc. or Standard
& Poor's Corporation and in each case maturing within six months after the date
of acquisition.
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"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries,
taken as a whole, to any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act), (ii) the sale, lease, transfer, conveyance or other
disposition (other than to the Company or a Wholly Owned Restricted Subsidiary
of the Company), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries,
taken as a whole, that are related or ancillary to the business conducted by
the Company and its Restricted Subsidiaries in Peru to any "person" (as such
term is used in Section 13(d)(3) of the Exchange Act), (iii) the adoption of a
plan relating to the liquidation or dissolution of the Company, (iv) the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any "person" (as such term is used
in Section 13(d)(3) of the Exchange Act), other than the Principals and their
Related Parties, becomes the "beneficial owner" (as such term is defined in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has
the right to acquire, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition), directly or
indirectly, of more than 35% of the Voting Stock of the Company (measured by
voting power rather than number of shares) or (iv) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors.
"Change of Control Payment" means an offer price in cash equal to 101% of
the aggregate principal amount of each Senior Note tendered pursuant to the
Change of Control Offer plus accrued and unpaid interest and Liquidated
Damages, if any, thereon.
"Collateral Account" means the escrow account in which the Collateral
Funds have been placed.
"Collateral Funds" means $62.0 million of the net proceeds of the
Offering, which have been invested in Cash Equivalents and placed in the
Collateral Account to be held by the Trustee, as Collateral Agent, pending
application of such funds by the Company for the payment of (a) Permitted
Expenditures, (b) in the event of a Change of Control, the Change of Control
Payment and (c) in the event of a Special Offer to Purchase or a Special
Mandatory Redemption, such purchase or redemption price.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with
an Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) provision for taxes based on income or
profits of such Person and its Subsidiaries for such period, to the extent that
such provision for taxes was included in computing such Consolidated Net
Income, plus (iii) consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred
in respect of letter of credit or bankers' acceptance financings, and net
payments (if any) pursuant to Hedging Obligations), to the extent that any such
expense was deducted in computing such Consolidated Net Income, plus (iv)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that
was paid in a prior period) of such Person and its Subsidiaries for such period
to the extent that such depreciation, amortization and other non-cash expenses
were deducted in computing such Consolidated Net Income, minus (v) non-cash
items increasing such Consolidated Net Income for such period. Notwithstanding
the foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization and other non-cash charges of, a Restricted
Subsidiary of the referent Person shall be added to Consolidated Net Income to
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compute Consolidated Cash Flow only to the extent that a corresponding amount
would be permitted at the date of determination to be dividended to the Company
by such Restricted Subsidiary without prior governmental approval (that has not
been obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Indebtedness" means, with respect to any Person as of any
date of determination, the sum, without duplication, of (i) the total amount of
Indebtedness of such Person and its Restricted Subsidiaries, plus (ii) the
total amount of Indebtedness of any other Person, to the extent that such
Indebtedness has been guaranteed by the referent Person or one or more of its
Restricted Subsidiaries, plus (iii) the aggregate liquidation value of all
Disqualified Stock of such Person and all preferred stock of Restricted
Subsidiaries of such Person, in each case, determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income (but not loss) of any Person that
is not a Subsidiary or that is accounted for by the equity method of accounting
shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (which
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition
shall be excluded, (iv) the cumulative effect of a change in accounting
principles shall be excluded and (v) the Net Income of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the Company or one
of its Subsidiaries.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that
by its terms is not entitled to the payment of dividends unless such dividends
may be declared and paid only out of net earnings in respect of the year of
such declaration and payment, but only to the extent of any cash received by
such Person upon issuance of such preferred stock, less (x) all write-ups
(other than write-ups resulting from foreign currency translations and
write-ups of tangible assets of a going concern business made within 12 months
after the acquisition of such business) subsequent to the date of the Indenture
in the book value of any asset owned by such Person or a consolidated
Subsidiary of such Person, (y) all investments as of such date in
unconsolidated Subsidiaries and in Persons that are not Subsidiaries (except,
in each case, Permitted Investments), and (z) all unamortized debt discount and
expense and unamortized deferred charges as of such date, all of the foregoing
determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors on the date of the Indenture or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Convertible Debentures" means, collectively, (i) the Company's $1,500
aggregate principal amount of 7% Convertible Debentures due February 3, 2000
and (ii) the Company's $2,000 aggregate principal amount of 8% Convertible
Debentures due April 30, 1998.
"Credit Facility" means, with respect to the Company or any of its
Restricted Subsidiaries, one or more debt facilities or commercial paper
facilities with banks or other institutional lenders providing for
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revolving credit loans, term loans, receivables financing (including through
the sale of receivables to such lenders or to special purpose entities formed
to borrow from such lenders against such receivables) or letters of credit, in
each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.
"Current Market Value" means, with respect to any shares of Qualified
Capital Stock, (i) the last reported bid price of such Qualified Capital Stock
on the principal national securities exchange on which such Qualified Capital
Stock is then being traded on the fifth Business Day following the consummation
of the acquisition of the applicable Permitted Business or (ii) if such
Qualified Capital Stock is not then listed or traded on a national securities
exchange, the value as determined in good faith by the board of directors of
the issuer of such Qualified Capital Stock (whose determination shall be
supported by a concurring valuation opinion from a nationally recognized
investment banking firm if such Current Market Value exceeds $5.0 million).
"Damages Payment Date" means with respect to the Existing Notes and New
Notes, each Interest Payment Date.
"Debt to Cash Flow Ratio" means, as of any date of determination, the
ratio of (a) the Consolidated Indebtedness of the Company as of such date to
(b) the Consolidated Cash Flow of the Company for the four most recent full
fiscal quarters ending immediately prior to such date for which internal
financial statements are available, determined on a pro forma basis after
giving effect to all acquisitions or dispositions of assets made by the Company
and its Restricted Subsidiaries from the beginning of such four-quarter period
through and including such date of determination (including any related
financing transactions) as if such acquisitions and dispositions had occurred
at the beginning of such four-quarter period. In addition, for purposes of
calculating Consolidated Cash Flow for the computation referred to above, (i)
acquisitions that have been made by the Company or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the date on which the
event for which the calculation of the Debt to Cash Flow Ratio is made (the
"Calculation Date") shall be deemed to have occurred on the first day of the
four-quarter reference period and Consolidated Cash Flow for such reference
period shall be calculated without giving effect to clause (iii) of the proviso
set forth in the definition of Consolidated Net Income, and (ii) the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Designated Equity Proceeds" means any net cash proceeds received by the
Company after the date of the Indenture from the issuance and sale of its
Qualified Capital Stock (other than Qualified Capital Stock sold to a
Subsidiary of the Company) providing the basis for (i) a redemption of Existing
Notes and New Notes in a transaction consummated in compliance with the second
paragraph of the section captioned "--Optional Redemption," (ii) an addition to
the cumulative account calculated pursuant to clause (c) of the first paragraph
of the covenant described above under the caption "--Certain
Covenants--Restricted Payments," (iii) the incurrence of additional
Indebtedness pursuant to clause (v) of the second paragraph of the covenant
described above under the caption "--Certain Covenants--Incurrence of
Indebtedness and Issuance of Preferred Stock" or (iv) an Investment pursuant to
clause (f) of the definition of "Permitted Investments," in each case, as
designated by a written resolution of the Board of Directors of the Company
filed with the Trustee on or prior to the date on which such net cash proceeds
are received by the Company. In no event shall the same net cash proceeds be
treated as Designated Equity Proceeds for more than one purpose under the
Indenture. Once designated for a particular purpose, such net cash proceeds may
not be redesignated for an alternative purpose. In addition, to the extent that
any such Qualified Capital Stock ceases to be outstanding for any reason, any
Indebtedness, Restricted Payment or Investment that was incurred or made as a
result of the receipt of net cash proceeds from the issuance of such Qualified
Capital Stock
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shall cease (as of the date on which such Qualified Capital Stock ceases to be
outstanding) to be permitted by virtue of the issuance of such Qualified
Capital Stock.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date that is 91 days after the date on which the Existing Notes and New Notes
mature.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Event of Default" means any of the following: (i) default for 30 days in
the payment when due of interest and Liquidated Damages, if any, on the
Existing Notes and New Notes, provided, however, that prior to October 27,
2000, the failure by the Company to pay interest on the Existing Notes and New
Notes within five days of an Interest Payment Date will constitute an immediate
Event of Default; (ii) default in payment when due of the principal of or
premium, if any, on the Existing Notes and New Notes; (iii) failure by the
Company to comply with the provisions described under the captions "--Proceeds
Pledge and Escrow Agreement," "--Repurchase at the Option of Holders--Change of
Control," "--Repurchase at the Option of Holders--Asset Sales," "--Certain
Covenants--Restricted Payments," "--Certain Covenants--Incurrence of
Indebtedness and Issuance of Preferred Stock" or "--Certain Covenants--Merger,
Consolidation or Sale of Assets;" (iv) failure by the Company for 60 days after
notice to comply with any of its other agreements in the Indenture or the
Existing Notes and New Notes; (v) breach by the Company of any material
representation, warranty or agreement set forth in the Proceeds Pledge and
Escrow Agreement, or repudiation by the Company of its obligations under the
Proceeds Pledge and Escrow Agreement or the unenforceability of the Proceeds
Pledge and Escrow Agreement against the Company for any reason; (vi) default
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which
is guaranteed by the Company or any of its Restricted Subsidiaries) whether
such Indebtedness or guarantee now exists, or is created after the date of the
Indenture, which default (a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such default (a
"Payment Default") or (b) results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $5.0 million or more; (vii) failure
by the Company or any of its Restricted Subsidiaries to pay final judgments
aggregating in excess of $5.0 million, which judgments are not paid, discharged
or stayed for a period of 60 days; (viii) except as permitted by the Indenture,
any Subsidiary Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Subsidiary shall deny or disaffirm its obligations under its
Subsidiary Guarantee; and (ix) certain events of bankruptcy or insolvency with
respect to the Company or any of its Significant Subsidiaries or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary.
"Existing Indebtedness" means up to $1.0 million in aggregate principal
amount of (a) Indebtedness of the Company and its Restricted Subsidiaries in
existence on the date of the Indenture and (b) Acquired Debt incurred by the
Company and its Restricted Subsidiaries in connection with the Iusatel
Acquisition, until such amounts are repaid.
"Fair Market Value" means, with respect to assets, Equity Interests or any
other securities having a fair market value (a) of less than $5.0 million, the
fair market value of such assets, Equity Interests or any other securities
determined in good faith by the Board of Directors of the Company (including a
majority of the Independent Directors thereof) and evidenced by a board
resolution and (b) equal to or in excess of $5.0 million, the fair market value
of such assets, Equity Interests or any other securities as
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determined by an investment banking firm of national standing; provided that
the fair market value of the assets purchased in an arm's-length transaction by
an Affiliate of the Company (other than a Subsidiary) from a third party that
is not also an Affiliate of the Company or such purchaser and contributed to
the Company within five Business Days of the consummation of the acquisition of
such assets by such Affiliate shall be deemed to be the aggregate consideration
paid by such Affiliate (which may include the fair market value of any non-cash
consideration to the extent that the valuation requirements of this definition
are complied with as to any such non-cash consideration); provided, further,
that the fair market value of Equity Interests issued and sold to the public in
a registered public offering or to one or more Strategic Equity Investors shall
be deemed to be the aggregate cash consideration paid to the Company in such
public offering or by such Strategic Equity Investors.
"Foreign Active Business Requirement" means that at least 80% of the gross
income of the Company and its direct or indirect subsidiaries during a certain
testing period as described in the Code is non-U.S. source income attributable
to the active conduct of a trade or business outside the U.S.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of the Indenture.
"Global Note holder" means DTC's nominee in whose name the Existing Global
Note is registered.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States of America is
pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligation" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and other agreements and
arrangements designed to protect such Person against fluctuations in interest
rates and (ii) foreign exchange swap agreements, foreign exchange option
agreements, foreign exchange futures agreements and other agreements and
arrangements designed to protect such Person against fluctuations in foreign
currency exchange rates.
"Holder" means a Person in whose name an Existing Note or New Note is
registered.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable,
if and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, as well as all
indebtedness of others secured by a Lien on any asset of such Person (whether
or not such indebtedness is assumed by such Person) and, to the extent not
otherwise included, the guarantee by such Person of any indebtedness of any
other Person. The amount of any Indebtedness outstanding as of any date shall
be (i) the accreted value thereof, in the case of any Indebtedness that does
not require current payments of interest, and (ii) the principal amount
thereof, together with any interest thereon that is more than 30 days past due,
in the case of any other Indebtedness.
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"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Subsidiary of the Company sells or otherwise disposes of
any Equity Interests of any direct or indirect Subsidiary of the Company such
that, after giving effect to any such sale or disposition, such Person is no
longer a Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Subsidiary not sold or disposed of in an
amount determined as provided in the penultimate paragraph of the covenant
described above under the caption "--Certain Covenants--Restricted Payments."
"Legal Holiday" means Saturday, Sunday or a day on which banking
institutions in the City of New York, State of New York, are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday, payment may be made at a place of payment on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Liquidated Damages" means liquidated damages payable by the Company as
described under the captions "Exchange Offer--Liquidated Damages" and
"Description of Senior Notes--Registration Rights; Liquidated Damages."
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b)
the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain
(but not loss), together with any related provision for taxes on such
extraordinary or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
in connection with such Asset Sale, and any reserve for adjustment in respect
of the sale price of such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness of an Unrestricted Subsidiary (i)
as to which neither the Company nor any of its Restricted Subsidiaries (a)
provides credit support of any kind (including any undertaking, agreement or
instrument that would constitute Indebtedness), (b) is directly or indirectly
liable (as a guarantor or otherwise) or (c) constitutes the lender; (ii) no
default with respect to which (including any rights that the holders thereof
may have to take enforcement action against an Unrestricted Subsidiary) would
permit (upon notice, lapse of time or both) any holder of any other
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Indebtedness (other than the Existing Notes and New Notes being offered hereby)
of the Company or any of its Restricted Subsidiaries to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity; and (iii) as to which the lenders have
been notified in writing that they will not have any recourse to the stock or
assets of the Company or any of its Restricted Subsidiaries.
"Non-U.S. holders" means persons other than U.S. holders.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company.
"Permitted Business" means any Telecommunications Business that operates
primarily in Latin American or Caribbean markets or any Telecommunications
Business reasonably related or ancillary thereto.
"Permitted Debt" means certain items of Indebtedness as described in the
section "Description of Senior Notes--Certain Covenants--Incurrence of
Indebtedness and Issuance of Preferred Stock."
"Permitted Expenditures" means (1)(A) the purchase price and related
expenses of any acquisition of (i) long-term assets used or useful in a
Permitted Business or (ii) a controlling interest in a Permitted Business or
(B) expenditures by the Company or any Restricted Subsidiary of the Company
directly related to the engineering, design, construction, installation or
development of assets and systems used or useful in a Permitted Business, in
each of clauses (A) and (B), in connection with Telecommunications Businesses
in Chile or Peru, (2) the repayment of Indebtedness of any Restricted
Subsidiary; provided that the commitments with respect thereto in the case of
revolving borrowings are correspondingly reduced and (3) other general
corporate purposes in an amount not to exceed $20.0 million.
"Permitted Investments" means (a) any Investment in the Company or in a
Wholly Owned Restricted Subsidiary of the Company that is engaged in a
Permitted Business; (b) any Investment in Cash Equivalents; (c) any Investment
by the Company in a Person, if as a result of such Investment (i) such Person
becomes a Wholly Owned Restricted Subsidiary of the Company that is engaged in
a Permitted Business or (ii) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Wholly Owned Restricted Subsidiary of the
Company and that is engaged in a Permitted Business; (d) any Restricted
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with the covenant
described above under the caption "--Repurchase at the Option of Holders--Asset
Sales;" (e) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company; (f)
Investments (measured as of the time made and without giving effect to
subsequent changes in value) in a Person engaged in a Permitted Business,
having an aggregate fair market value (measured on the date each such
Investment was made and without giving effect to subsequent changes in value),
when taken together with all other Investments made pursuant to this clause (f)
that are at the time outstanding, not to exceed the sum of (A) $5.0 million
plus (B) 100% of the aggregate net cash proceeds received by the Company after
the date of the Indenture from the issuance and sale of its Qualified Capital
Stock to the extent that such net cash proceeds have been, and continue to be,
designated as Designated Equity Proceeds to be applied to make Investments
pursuant to this clause (f) as provided in the definition thereof; provided
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that, to be extent that any such Qualified Capital Stock ceases to be
outstanding for any reason, any Investment that was made as a result of the
receipt of net cash proceeds from the issuance of such Qualified Capital Stock
shall cease to be permitted by virtue of this clause (f) as of the date on
which such Qualified Capital Stock ceases to be outstanding; (g) any Investment
in prepaid expenses, negotiable instruments held for collection, and lease,
utility, workers' compensation, performance and other similar deposits; (h)
loans and advances to employees made in the ordinary course of business in an
aggregate amount not to exceed $1.0 million at any one time outstanding; and
(i) Investments made in connection with Hedging Obligations.
"Permitted Liens" means, without duplication, each of the following:
(i) Liens in favor of the Company or any of its Wholly Owned Restricted
Subsidiaries;
(ii) Liens on property of a Person existing at the time such Person is
merged into or consolidated with the Company or any Restricted Subsidiary
of the Company; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company or such Restricted Subsidiary;
(iii) Liens on property existing at the time of acquisition thereof by
the Company or any Restricted Subsidiary of the Company, provided that such
Liens were in existence prior to the contemplation of such acquisition;
(iv) Liens existing on the date of the Indenture;
(v) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(vi) Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;
(vii) Liens securing Indebtedness of any Restricted Subsidiary of the
Company that does not exceed $5.0 million at any one time outstanding
represented by Capital Lease Obligations, mortgage financings or purchase
money obligations, in each case incurred for the purpose of financing all
or any part of the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of such Restricted
Subsidiary;
(viii) Liens on assets of Unrestricted Subsidiaries that secure
Non-Recourse Debt of Unrestricted Subsidiaries;
(ix) Liens created pursuant to the Proceeds Pledge and Escrow Agreement;
(x) Liens incurred in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company with respect to obligations that
do not exceed $5.0 million at any one time outstanding and that (a) are not
incurred in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary;
(xi) Liens securing the Existing Notes and New Notes;
(xii) easements, rights-of-way, zoning and similar restrictions and other
similar encumbrances or title defects which, in the aggregate, are not
material in amount, and which do not, in any case,
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materially detract from the value of the property subject thereto (as such
property is used by the Company or any of its Restricted Subsidiaries) or
interfere with the ordinary conduct of the business of the Company or any
of its Restricted Subsidiaries;
(xiii) Liens arising by reason of any judgment, decree or order or any
court so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(xiv) any interest or title of a lessor under any Capital Lease
Obligation; and
(xv) any extension, renewal or replacement, in whole or in part, of any
Permitted Lien, provided that any such extension, renewal or replacement
shall be no more restrictive in any material respects that the Lien so
extended, renewed or replaced and shall not extend to any additional
property or assets.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Subsidiaries; provided
that: (i) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount of (or
accreted value, if applicable), plus accrued interest on, the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Existing Notes and New
Notes, such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and is subordinated in right of payment to,
the Existing Notes and New Notes on terms at least as favorable to the holders
of Existing Notes and New Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is incurred either by the
Company or by the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business).
"Pledge Account" means the account established by the Company with the
Trustee for the deposit of the Pledges Securities.
"Pledged Securities" means securities, initially consisting of Government
Securities, purchased by the Company with a portion of the proceeds from the
sale of the Existing Notes and New Notes, for deposit in the Pledge Account.
"Principals" means Patricio E. Northland, the current Chairman, President
and Chief Executive Officer of the Company, and Douglas G. Geib II, the current
Chief Financial Officer of the Company.
"Proceeds Pledge and Escrow Agreement" means the Proceeds Pledge and
Escrow Agreement, dated as of the date of the Indenture, by and between the
Company and the Trustee, as Collateral Agent, governing the disbursement of
funds from the Pledge Account and the Collateral Account.
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
Capital Stock.
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"Record holder" means with respect to any Damages Payment Date relating to
the Existing Notes or New Notes, each Person who is a holder of Existing Notes
or New Notes on the record date with respect to the Interest Payment Date on
which such Damages Payment Date shall occur.
"Registration Default" means any of the following events: (a) the Company
fails to file any of the Registration Statements required by the Registration
Rights Agreement on or before the date specified for such filing, (b) any of
such Registration Statements is not declared effective by the Commission on or
prior to the date specified for such effectiveness, or (c) the Company fails to
consummate the Exchange Offer within 30 business days of the Effectiveness
Target Date with respect to the Exchange Offer Registration Statement, or (d)
the Shelf Registration Statement or the Exchange Offer Registration Statement
is declared effective but thereafter ceases to be effective or usable in
connection with resales of Transfer Restricted Securities during the periods
specified in the Registration Rights Agreement.
"Registration Rights Agreement" means the A/B Exchange Registration Rights
Agreement dated as of October 27, 1997 between the Company and the Initial
Purchaser.
"Related Party" with respect to any Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (B) or trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Shelf Filing Deadline" means the earliest to occur of (1) the 45th day
after the date on which the Company determines that it is not required to file
the Exchange Offer Registration Statement, (2) the 45th day after the date on
which the Company receives notice from a holder of Transfer Restricted
Securities (A) that such holder is prohibited by applicable law or Commission
policy from participating in the Exchange Offer or (B) that such holder may not
resell the Senior Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such holder, or (C) that such holder is a broker-dealer and holds
Existing Notes acquired directly from the Company or one of its Affiliates, and
(3) the 60th day after the Closing Date.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X of the
Commission in effect on the date hereof.
"Special Mandatory Redemption" means ICCA will be required by the terms of
the Indenture to redeem all of the Existing Notes and New Notes at a redemption
price in cash equal to 101% of the aggregate principal thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of purchase
if after the Special Offer to Purchase is consummated at least $20.0 million in
aggregate principal amount of Existing Notes and New Notes does not remain
outstanding.
"Special Offer to Purchase" means in the event that on or after October
27, 2000 Collateral Funds remain in the Collateral Account, each holder of New
Notes will have the right to require ICCA to repurchase all or any part of such
holder's New Notes at an offer price equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the
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original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"Strategic Equity Investor" means a corporation, partnership or other
entity engaged in one or more Telecommunications Businesses that has, or 80% or
more of the voting power of the Capital Stock of which is owned by a Person
that has an equity market capitalization, at the time of its initial Investment
in the Company, in excess of $2.0 billion.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity (x) of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) or (y) which such Person either alone or together with one
or more Restricted Subsidiaries of such Person has the absolute right, pursuant
to law, contract or otherwise, to direct the payment of dividends or the making
of other distributions, loans or advances by such corporation, association or
other business entity and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means any guarantee of payment of the Existing
Notes and New Notes by a Subsidiary issued by such Subsidiary pursuant to the
covenant described above under the caption "--Certain Covenants--Limitations on
Issuances of Guarantees of Indebtedness by Subsidiaries."
"Systems Costs" means expenditures by the Company or any Restricted
Subsidiary of the Company directly related to the engineering, design,
construction, installation or development of assets and systems used or useful
in a Permitted Business in connection with Telecommunications Businesses in
Chile or Peru.
"Telecommunications Business" means any business that derives
substantially all of its revenue from the business of (i) transmitting, or
providing services relating to the transmission of, voice, video or data
through owned or leased transmission facilities, (ii) creating, developing or
marketing communications related network equipment for use in a
telecommunications business or (iii) evaluating, participating in or pursuing
any other activity or opportunity that is primarily related to those identified
in (i) or (ii) above; provided that the determination of what constitutes a
Telecommunications Business shall be made in good faith by the Board of
Directors of the Company.
"Transfer Restricted Securities" shall mean each Existing Note and New
Note until the earlier to occur of: (i) the date on which such Existing Note
and New Note has been exchanged for a New Note in the Exchange Offer and to be
resold to the public by the holder thereof without complying with the
prospectus delivery requirements of the Securities Act, (ii) the date on which
such Existing Note and New Note has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement and (iii) the date on which such Senior Note is distributed to the
public pursuant to Rule 144 under the Securities Act or by a broker-dealer
pursuant to the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement.
"Unrestricted Subsidiary" means any Subsidiary (other than any Subsidiary
of the Company that owns all or a material portion of the assets (i) owned by
the Company or any Subsidiary of the Company on the date of the Indenture or
(ii) owned by any Person described in this Prospectus under the caption "The
Iusatel Acquisition" on the date of the acquisition by the Company of such
Person) that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution; but only to the extent that such
Subsidiary: (a) has no Indebtedness other than Non-Recourse Debt; (b) is not
party to any agreement, contract, arrangement or understanding with the Company
or any Restricted Subsidiary of the Company unless the terms of any such
agreement,
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contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (c) is a Person with respect to
which neither the Company nor any of its Restricted Subsidiaries has any direct
or indirect obligation (x) to subscribe for additional Equity Interests or (y)
to maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; (d) has not
guaranteed or otherwise directly or indirectly provided credit support for any
Indebtedness of the Company or any of its Restricted Subsidiaries; and (e) has
at least one director on its board of directors that is not a director or
executive officer of the Company or any of its Restricted Subsidiaries and has
at least one executive officer that is not a director or executive officer of
the Company or any of its Restricted Subsidiaries. Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing with the Trustee
a certified copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions and was permitted by the covenant described above under
the caption "--Certain Covenants--Restricted Payments." If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of the Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under the covenant described under the caption
"--Certain Covenants--Incurrence of Indebtedness and Issuance of Preferred
Stock," the Company shall be in default of such covenant). The Board of
Directors of the Company may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that such designation shall be deemed
to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company
of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
the covenant described under the caption "--Certain Covenants--Incurrence of
Indebtedness and Issuance of Preferred Stock," calculated on a pro forma basis
as if such designation had occurred at the beginning of the four-quarter
reference period, and (ii) no Default or Event of Default would be in existence
following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than (i) directors' qualifying shares or
(ii) shares of non-U.S. Restricted Subsidiaries held by non-U.S. nationals as
required by the laws of the jurisdiction of incorporation of such non-U.S.
Restricted Subsidiary) shall at the time be owned by such Person or by one or
more Wholly Owned Restricted Subsidiaries of such Person; provided, that no
Restricted Subsidiary of such Person, all of the outstanding Capital Stock or
other ownership interests of which are not owned by such Person, shall in any
case be a "Wholly Owned Restricted Subsidiary" under the Indenture unless such
Person either alone or together with one or more Wholly Owned Restricted
Subsidiaries of such Person has the absolute right, pursuant to law, contract
or otherwise, to direct the payment of dividends or the making of other
distributions, loans or advances by such Restricted Subsidiary.
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PROVISIONS GENERALLY APPLICABLE TO THE EXISTING NOTES AND NEW NOTES
BOOK-ENTRY, DELIVERY AND FORM
All of the Existing Notes were initially issued in the form of one Global
Note (the "Existing Global Note") The Existing Global Note was deposited upon
issuance with the Trustee as custodian for The Depository Trust Company
("DTC"), in New York, New York, and registered in the name of DTC or its
nominee, in each case for credit to an account of a direct or indirect
participant in DTC as described below. The New Notes which will be issued in
exchange for the Existing Notes will be issued in the form of one Global Note
(the "New Global Note") and deposited upon issuance with, or on behalf of, DTC
and registered in the name of the Global Note holder.
Except as set forth below, the Global Note may be transferred, in whole
and not in part, only to another nominee of DTC or to a successor of DTC or its
nominee. Beneficial interests in the Global Note may not be exchanged for New
Notes in certificated form except in the limited circumstances described below.
See "--Exchange of Book-Entry Securities for Certificated Securities."
DEPOSITORY PROCEDURES
DTC has advised the Company that DTC is a limited-purpose trust company
created to hold securities for its participating organizations (collectively,
the "Participants") and to facilitate the clearance and settlement of
transactions in those securities between Participants through electronic
book-entry changes in accounts of its Participants. The Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Access to DTC's system is also available to
other entities such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a Participant, either
directly or indirectly (collectively, the "Indirect Participants"). Persons who
are not Participants may beneficially own securities held by or on behalf of
DTC only through the Participants or the Indirect Participants. The ownership
interests and transfer of ownership interests of each actual purchaser of each
security held by or on behalf of DTC are recorded on the records of the
Participants and Indirect Participants.
The Company expects that, pursuant to procedures established by DTC, (i)
upon deposit of the New Global Note, DTC will credit the accounts of
Participants designated by the Exchange Agent with portions of the principal
amount of the New Global Note and (ii) ownership of the New Notes evidenced by
the New Global Note will be shown on, and the transfer of ownership thereof
will be effected only through, records maintained by DTC (with respect to the
interests of the Participants), the Participants and the Indirect Participants.
Prospective purchasers are advised that the laws of some states require that
certain persons take physical delivery in definitive form of securities that
they own. Consequently, the ability to transfer New Notes evidenced by the New
Global Note will be limited to such extent.
So long as the Global Note holder is the registered owner of any Existing
Notes and New Notes, the Global Note holder will be considered the sole holder
under the Indenture of any Notes evidenced by the Existing Global Note and the
New Global Note. Beneficial owners of Existing Notes and New Notes evidenced by
the Existing Global Note and the New Global Note will not be considered the
owners or holders thereof under the Indenture for any purpose, including with
respect to the giving of any directions, instructions or approvals to the
Trustee thereunder. Neither the Company nor the Trustee has any responsibility
or liability for any aspect of the records of DTC or for maintaining,
supervising or reviewing any records of DTC relating to the Existing Notes and
New Notes.
Payments in respect of the principal of, premium, if any, interest and
Liquidated Damages, if any, on any Notes registered in the name of the Global
Note holder on the applicable record date will be payable by the Trustee to or
at the direction of the Global Note holder in its capacity as the registered
holder under the Indenture. Under the terms of the Indenture, the Company and
the Trustee may treat the persons in whose names Existing Notes and New Notes,
including the Existing Global Note, are
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registered as the owners thereof for the purpose of receiving such payments.
Consequently, neither the Company nor the Trustee has or will have any
responsibility or liability for the payment of such amounts to beneficial
owners of Existing Notes and New Notes. The Company believes, however, that it
is currently the policy of DTC to immediately credit the accounts of the
relevant Participants with such payments, in amounts proportionate to their
respective holdings of beneficial interests in the relevant security as shown
on the records of DTC. Payments by DTC's Participants and DTC's Indirect
Participants to the beneficial owners of Existing Notes and New Notes will be
governed by standing instructions and customary practice and will be the
responsibility of DTC's Participants or DTC's Indirect Participants.
EXCEPT AS DESCRIBED BELOW, OWNERS OF INTERESTS IN THE GLOBAL NOTE WILL NOT
HAVE NEW NOTES REGISTERED IN THEIR NAMES, WILL NOT RECEIVE PHYSICAL DELIVERY OF
NEW NOTES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE REGISTERED OWNERS
OR HOLDERS THEREOF UNDER THE INDENTURE FOR ANY PURPOSE.
Payments in respect of the principal of, premium if any, interest and
Liquidated Damages, if any, on any Existing Notes and New Notes, registered in
the name of DTC or its nominee will be payable by the Trustee to DTC in its
capacity as the registered holder under the Indenture. Under the terms of the
Indenture the Company and the Trustee will treat the persons in whose names the
New Notes, including the New Global Note, are registered as the owners thereof
for the purpose of receiving such payments and for any and all other purposes
whatsoever. Consequently, neither the Company nor the Trustee has or will have
any responsibility or liability for (i) any aspect of DTC's records or any
Participant's or Indirect Participant's records relating to or payments made on
account of beneficial ownership interest in the New Global Note, or for
maintaining, supervising or reviewing any of DTC's records or any Participant's
or Indirect Participant's records relating to the beneficial ownership
interests in the New Global Note or (ii) any other matter relating to the
actions and practices of DTC or any of its Participants or Indirect
Participants. DTC has advised the Company that its current practice, upon
receipt of any payment in respect of securities, is to credit the accounts of
the relevant Participants with the payment on the payment date, in amounts
proportionate to their respective holdings in the principal amount of
beneficial interest in the relevant security as shown on the records of DTC
unless DTC has reason to believe it will not receive payment on such payment
date. Payments by the Participants and the Indirect Participants to the
beneficial owners of Securities will be governed by standing instructions and
customary practices and will be the responsibility of the Participants or the
Indirect Participants and will not be the responsibility of DTC, the Trustee or
the Company. Neither the Company nor the Trustee will be liable for any delay
by DTC or any of its Participants in identifying the beneficial owners of the
New Notes, and the Company and the Trustee may conclusively rely on and will be
protected in relying on instructions from DTC or its nominee for all purposes.
Interests in the New Global Note are expected to be eligible to trade in
DTC's Same-Day Funds Settlement System, and secondary market trading activity
in such interests will therefore settle in immediately available funds, subject
in all cases to the rules and procedures of DTC and its participants. See
"--Same-Day Settlement and Payment."
Subject to the transfer restrictions set forth under "Notice to
Investors," transfers between Participants in DTC will be effected in
accordance with DTC's procedures, and will be settled in same-day funds.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of New Notes only at the direction of one or more
Participants to whose account with DTC interests in the New Global Note are
credited and only in respect of such porion of the aggregate principal amount
of the New Notes as to which such Participant or Participants has or have given
such direction. However, if there is an Event of Default under the New Notes,
DTC reserves the right to exchange the New Notes for legended New Notes in
certificated form, and to distribute such New Notes to its Participants.
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The information in this section concerning DTC, and its book-entry systems
has been obtained from sources that the Company believes to be reliable, but
the Company takes no responsibility for the accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate
transfers of interests in the New Global Note among Participants in DTC, it is
under no obligation to perform or to continue to perform such procedures, and
such procedures may be discontinued at any time. Neither the Company nor the
Trustee will have any responsibility for the performance by DTC or its
Participants or Indirect Participants of their respective obligations under the
rules and procedures governing their operations.
EXCHANGE OF BOOK-ENTRY SECURITIES FOR CERTIFICATED SECURITIES
A New Global Note is exchangeable for definitive New Notes in registered
certificated form if (i) DTC (x) notifies the Company that it is unwilling or
unable to continue as depositary for the New Global Note and the Company
thereupon fails to appoint a successor depositary or (y) has ceased to be a
clearing agency registered under the Exchange Act, (ii) the Company, at its
option, notifies the Trustee in writing that it elects to cause the issuance of
the New Notes in certificated form or (iii) there shall have occurred and be
continuing an Event of Default or any event which after notice or lapse of time
or both would be an Event of Default with respect to the New Notes. In
addition, beneficial interests in a New Global Note may be exchanged for
certificated New Notes upon request but only upon at least 20 days prior
written notice given to the Trustee by or on behalf of DTC in accordance with
its customary procedures. In all cases, certificated New Notes delivered in
exchange for any New Global Note or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of the depositary (in accordance with its customary procedures)
and will bear the applicable restrictive legend referred to in "Notice to
Investors," unless the Company determines otherwise in compliance with
applicable law.
EXCHANGE OF CERTIFICATED SECURITIES FOR BOOK-ENTRY SECURITIES
New Notes issued in certificated form may not be exchanged for beneficial
interests in any New Global Note unless the transferor first delivers to the
Trustee a written certificate (in the form provided in the Indenture) to the
effect that such transfer will comply with the appropriate transfer
restrictions applicable to such New Notes as described under "Notice to
Investors."
SAME DAY SETTLEMENT AND PAYMENT
The Indenture requires that payments in respect of the New Notes
represented by the New Global Note be made by wire transfer of immediately
available funds to the accounts specified by the New Global Note holder. With
respect to New Notes in certificated form, the Company will make all payments
of principal, premium, if any, interest and Liquidated Damages, if any, by wire
transfer of immediately available funds to the accounts specified by the
holders thereof or, if no such account is specified, by mailing a check to each
such holder's registered address.
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FEDERAL INCOME TAX CONSIDERATIONS
The following discussion of the material federal income tax considerations
to holders whose Existing Notes are exchanged for New Notes are as described
herein and constitutes the opinion of Baker & McKenzie, counsel to the Company,
subject to the limitations and conditions set forth below. Except as
specifically discussed below with regard to Non-U.S. Holders, this description
applies only to initial investors who hold the Existing Notes and New Notes as
capital assets and who, for United States federal income tax purposes, are (i)
individual citizens or residents of the United States, (ii) corporations,
partnerships or other entities created or organized in or under the laws of the
United States or of any political subdivision thereof (unless, in the case of a
partnership, Treasury Regulations otherwise provide), (iii) estates, the income
of which are subject to United States federal income taxation regardless of the
source of such income or (iv) trusts subject to the primary supervision of a
United States court and the control of one or more United States persons ("U.S.
Holders"). Persons other than U.S. Holders ("Non-U.S. Holders") are subject to
special federal income and estate tax considerations that are discussed below.
There can be no assurance that the Internal Revenue Service will agree with the
following discussion. Further, the discussion does not address all aspects of
taxation that may be relevant to particular purchasers in light of their
personal circumstances (including the effect of any foreign, state or local tax
laws) or to certain types of purchasers (including dealers in securities,
insurance companies, foreign persons, financial institutions, tax-exempt
entities and persons holding the New Notes as part of a straddle, hedge or
conversion transaction) subject to special treatment under the federal income
tax laws. Moreover, the effect of any applicable state, local or foreign tax
laws is not discussed.
The discussion of the federal income tax consequences set forth below is
based upon currently existing provisions of the Internal Revenue Code of 1986,
as amended (the "Code"), judicial decisions, and administrative interpretations
including, but not limited to, Treasury regulations relating to original issue
discount ("OID Regulations"), all of which are subject to change, possibly with
retroactive effect. BECAUSE INDIVIDUAL CIRCUMSTANCES MAY DIFFER, EACH
PROSPECTIVE PURCHASER OF NEW NOTES IS STRONGLY URGED TO CONSULT HIS OWN TAX
ADVISOR WITH RESPECT TO HIS PARTICULAR TAX SITUATION AND THE PARTICULAR TAX
EFFECTS OF ANY STATE, LOCAL, FOREIGN OR OTHER TAX LAWS AND POSSIBLE CHANGES IN
THE TAX LAWS.
TAX CONSEQUENCES FOR U.S. HOLDERS
EXCHANGE OF EXISTING NOTES FOR NEW NOTES
Because the New Notes will not be considered to differ materially either
in kind or in extent from the Existing Notes, the exchange of New Notes for
Existing Notes pursuant to the Exchange Offer will not be treated as an
"exchange" for federal income tax purposes pursuant to Section 1001 of the Code
and Treasury Regulation Section 1.1001-3. As a result, no material federal
income tax consequences will result to holders exchanging Existing Notes for
New Notes and such holders will have the same tax basis and holding period in
the New Notes as they had in the Existing Notes immediately prior to the
Exchange Offer.
INTEREST AND ORIGINAL ISSUE DISCOUNT; MARKET DISCOUNT; AMORTIZABLE BOND
PREMIUM
Stated interest on the New Notes will be taxable to a U.S. Holder as
ordinary interest income at the time it accrues or is paid in accordance with
such holder's method of accounting for tax purposes.
In addition, because the Existing Notes were issued as part of a Unit
consisting of the Existing Notes and Warrants and the basis of such Unit was
required to be allocated to the Existing Notes and Warrants based on their
relative fair market value, the New Notes will be treated, for federal income
tax purposes, as having been issued with original issue discount ("OID") unless
the amount of the OID is considered DE MINIMUS. A U.S. Holder of a New Note
will be required to include such OID (other
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than DE MINIMUS OID) in income (as interest) as it accrues, regardless of the
holder's method of accounting for federal income tax purposes. Accordingly, a
U.S. Holder will be required to include amounts in gross income in advance of
the receipt of the cash to which such income is attributable.
If a U.S. Holder acquired an Existing Note, other than upon original
issue, for an amount less than the Revised Issue Price (defined as the sum of
the issue price of an Existing Note and the aggregate amount of OID to be
included in gross income for all periods prior to the acquisition without
regard to acquisition premium) on the date of acquisition, an Existing Note may
be considered to be a "market discount bond." If an Existing Note is a market
discount bond, a portion of the gain on the sale or redemption of an Existing
Note (see "--Sale, Redemption or Other Taxable Disposition") equal to the
amount of market discount accrued with respect to an Existing Note while it was
held by the U.S. Holder will be treated as interest income. In addition,
interest on indebtedness incurred or continued to purchase or carry an Existing
Note that is a market discount bond, to the extent that it exceeds in any year
the interest (including OID) on an Existing Note to be included in the U.S.
Holder's income for that year, may not be fully deductible in that year. The
foregoing market discount rules will not apply if the U.S. Holder elects to
include in income in each taxable year the portion of the market discount
attributable to that year (accrued on either a straight line or constant
interest rate basis) with respect to all market discount bonds acquired during
or after the taxable year in which such election is made.
If a U.S. Holder acquired an Existing Note, other than upon original
issue, for an amount more than the stated redemption price at maturity, such
holder may elect to amortize such bond premium on a yield to maturity basis.
If a U.S. Holder acquired an Existing Note other than upon original issue
for an amount more than the Revised Issue Price of each Existing Note on the
date of acquisition, but less than the stated redemption price at maturity of
such Existing Note, such a holder will be required to reduce each daily portion
of accrued OID by an allocable portion of such acquisition premium. The
allocable portion of such acquisition premium will be equal to the daily
portion of accrued OID multiplied by a fraction (i) the numerator of which is
the excess of the cost of an Existing Note incurred by such holder over the
Revised Issue Price of such Existing Note on the date of acquisition and (ii)
the denominator of which is the excess of the stated redemption price of an
Existing Note at maturity over the Revised Issue Price of such Existing Note on
the date of acquisition.
A U.S. Holder may elect to include in gross income its entire return on an
Existing Note (i.e., the excess of all remaining payments to be received on an
Existing Note over the amount paid for such Existing Note by the U.S. Holder)
based on the compounding of interest at a constant rate. The election for an
Existing Note with amortizable bond premium or market discount results in a
deemed election to apply the same accrual principles to all of the U.S.
Holder's debt instruments with amortizable bond premium or market discount.
This election may be revoked only with the consent of the IRS.
The amount of OID with respect to a New Note will be an amount equal to
the excess of the stated redemption price at maturity of such New Note over the
issue price of such New Note. The stated redemption price at maturity of each
Senior Note will include all cash payments, including principal and interest,
required to be made thereunder until maturity other than qualified stated
interest. Stated interest on the New Note will qualify as qualified stated
interest. The issue price of a New Note will be equal to that portion of the
issue price of the Unit allocable to the New Note based on the relative fair
market values of the New Notes and Warrants forming part of a Unit at the time
of issuance. The OID will be considered de minimus, and thus no current accrual
would be required, if the OID is less than .25% of the stated redemption price
at maturity, multiplied by the number of complete years to maturity. The
purchase price of each Unit was $1,000. The Company has allocated $876.67 of
such purchase price to the Existing Notes. Thus, the OID is not DE MINIMUS. The
Company's allocation of the purchase price between the Existing Notes and the
Warrants will be binding on each holder of the New Notes, unless a holder
discloses on a statement attached to such holder's timely filed Federal income
tax return for the year that includes the acquisition date of the Units, that
the holder's determination of the
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<PAGE>
allocation of such purchase price is different from the Company's allocation of
such purchase price. The Company's determination of the allocation of the
purchase price between the Existing Notes and the Warrants is not binding on
the Internal Revenue Service.
The amount of OID accruing with respect to any New Note will be the sum of
the "daily portions" of OID with respect to such New Note for each day during
the taxable year in which a holder owns a New Note ("accrued OID"). The daily
portion is determined by allocating to each day in any "accrual period" a pro
rata portion of the OID allocable to that accrual period. An accrual period may
be of any length and may vary in length over the term of a New Note provided
that each accrual period is no longer than one year and each scheduled payment
of principal or interest occurs either on the final day or on the first day of
an accrual period. The amount of OID accruing during any full accrual period
with respect to a New Note will be equal to the following amount: (i) the
"adjusted issue price" of such New Note at the beginning of that accrual
period, multiplied by (ii) the yield to maturity of such New Note. OID
allocable to a final accrual period is the difference between the amount
payable at maturity and the adjusted issue price at the beginning of the final
accrual period. If all accrual periods are of equal length, except for an
initial short accrual period, the amount of OID allocable to the initial short
accrual period may be computed under any reasonable method. The adjusted issue
price of a New Note at the beginning of its first accrual period will be equal
to its issue price. The adjusted issue price at the beginning of any subsequent
accrual period will be equal to (i) the adjusted issue price at the beginning
of the preceding accrual period, plus (ii) the amount of OID accrued during the
preceding accrual period, minus (iii) any payments other than qualified stated
interest made during the preceding accrual period and on the first day of such
subsequent accrual period.
In the event of a Change of Control, the holders of the New Notes will
have the right to require the Company to purchase their New Notes. The OID
Regulations provide that the right of holders of the New Notes to require
redemption of the New Notes upon the occurrence of a Change of Control will not
affect the yield or maturity date of the New Notes unless, based on all the
facts and circumstances as of the issue date, it is more likely than not that a
Change of Control giving rise to the redemption right will occur. The Company
has no present intention of treating the redemption provisions of the New Notes
as affecting the computation of the yield to maturity of any New Note.
The Company may redeem the New Notes at any time on or after October 27,
2002, and, in certain circumstances, may redeem or repurchase all or a portion
of the New Notes prior to October 27, 2000 with the proceeds of a sale of its
Qualified Capital Stock to the public in a registered public offering or to one
or more Strategic Equity Investors. Under the OID Regulations, the Company is
deemed to exercise any option to redeem if the exercise of such option would
lower the yield of the debt instrument. The Company will not be treated as
having exercised an option to redeem under these rules.
SALE, REDEMPTION OR OTHER TAXABLE DISPOSITION
Generally, any sale, redemption or other taxable disposition of New Notes
by a U.S. Holder will result in taxable gain or loss equal to the difference
between (1) the sum of the amount of cash and the fair market value of any
property received upon such sale, redemption or disposition (except to the
extent that cash received is attributable to accrued interest or OID) and (2)
the holder's adjusted tax basis in such New Notes. The adjusted tax basis of a
holder in such New Notes will equal the issue price of such New Notes,
increased by any OID or accrued market discount on the New Notes previously
included in such holder's income, and reduced by any payments (other than
payments of qualified stated interest) previously made on the New Notes.
Subject to the discussion of the Existing Notes which are market discount
bonds, such gain or loss will be capital gain or loss, and will be long-term
capital gain or loss if the New Notes had been held by the holder for more than
one year at the time of the sale, redemption or disposition. Long-term capital
gain realized by an individual U.S. Holder is generally subject to a maximum
tax rate of 20%.
U.S. Holders should be aware that the resale of a New Note may be affected
by the "market discount" rules of the Code under which a subsequent purchaser
of a New Note acquiring the New
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<PAGE>
Note at a market discount generally would be required to include as ordinary
income a portion of the gain realized upon the disposition or retirement of
such New Note to the extent of the market discount that has accrued while the
debt instrument was held by such holder.
TAX CONSIDERATIONS FOR NON-U.S. HOLDERS
INTEREST
Interest (including OID) paid by the Company to a Non-U.S. Holder will not
be subject to U.S. federal income or withholding tax if such interest is not
effectively connected with the conduct of a trade or business within the U.S.
by such Non-U.S. Holder and either (a) at least 80% of the gross income of the
Company and its direct or indirect subsidiaries during a certain testing period
as described in the Code is non-U.S. source income attributable to the active
conduct of a trade or business outside the U.S. or (b) the Non-U.S. Holder (i)
does not actually or constructively own 10% or more of the total combined
voting power of all classes of stock of the Company, (ii) is not a controlled
foreign corporation with respect to which the Company is a "related person"
within the meaning of the Code and (iii) certifies, under penalties of perjury,
that such owner is not a U.S. person and provides such owner's name and
address.
The certification described under the exemption from withholding tax
described in (b)(iii) above is generally required to be made on Form W-8 (or
permitted substitute form) prior to payment. Regulations dealing with
withholding tax on amounts paid to foreign persons and related matters (the
"New Withholding Regulations") were recently issued by the Treasury Department.
In general, the New Withholding Regulations do not significantly alter the
substantive withholding and information reporting requirements, but unify
current certification procedures and forms, clarify reliance standards and
provide certain special procedures for payments made to qualified
intermediaries. The New Withholding Regulations will generally be effective for
payments made after December 31, 1999, subject to certain transition rules.
Accordingly, payments made on or before December 31, 1999 will continue to be
subject to the regulations that existed before the New Withholding Regulations
were issued.
Interest paid to a Non-U.S. Holder that is effectively connected with a
United States trade or business conducted by such Non-U.S. Holder will be taxed
at the graduated rates applicable to United States citizens, resident aliens
and domestic corporations, and will not be subject to withholding tax if the
Non-U.S. Holder gives an appropriate statement to the Company or its paying
agent in advance of the interest payment. In addition to the graduate tax
described above, effectively connected interest received by a Non-U.S. Holder
that is a corporation may also be subject to an additional branch profits tax
at a rate of 30% (or such lower rate as may be specified by an applicable
income tax treaty).
GAIN ON DISPOSITION OF NEW NOTES
A Non-U.S. Holder will generally not be subject to U.S. federal income tax
on gain recognized on a sale, redemption or other disposition of a New Note
unless (i) the gain is effectively connected with the conduct of a trade or
business within the U.S. by the Non-U.S. Holder or (ii) in the case of a
Non-U.S. Holder who is a non-resident alien individual and holds the New Note
as a capital asset, such holder is present in the U.S. for 183 or more days in
the taxable year and certain other requirements are met.
FEDERAL ESTATE TAXES
If interest on the New Notes is exempt from withholding of U.S. federal
income tax under the rules described above, the New Notes will not be included
in the estate of a deceased Non-U.S. Holder for U.S. federal estate tax
purposes.
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<PAGE>
INFORMATION REPORTING AND BACKUP WITHHOLDING
For each year in which the Senior Notes are outstanding, the Company will
generally be required to provide the Internal Revenue Service with certain
information, including the holder's name, address and taxpayer identification
number (either such holder's social security number or its employer
identification number, as the case may be), and the aggregate amount of
interest (including OID) and principal paid to such holder during the year.
These reporting requirements, however, do not apply with respect to certain
holders, including United States corporations, securities dealers, other
financial institutions, tax-exempt organizations, qualified pension and profit
sharing trusts, and individual retirement accounts.
In the event that a holder fails to establish its exemption from such
information reporting requirements or is otherwise subject to the reporting
requirements described above and fails to supply its correct taxpayer
identification number in the manner required by applicable law, or underreports
its tax liability, the paying agent making payments in respect of a Senior Note
may be required to withhold an amount equal to 31% from any payment of interest
or principal pursuant to the terms of the Senior Notes, or any payment of
proceeds of a redemption of Senior Notes, as the case may be, to a holder. The
New Withholding Regulations provide that to the extent a Non-U.S. Holder
certifies on Form W-8 (or a permitted substitute form) as to such holder's
status as a foreign person, the backup withholding provisions and the
information reporting provisions will generally not apply. If a Non-U.S. Holder
fails to provide such certification, such holder may be subject to certain
information reporting and the 31% backup withholding tax. Amounts paid as
backup withholding do not constitute an additional tax and will be credited
against the holder's federal income tax liabilities, so long as the required
information is provided to the Internal Revenue Service. The Company will
report to the holders of Senior Notes the amount of any "reportable payments"
for each calendar year and the amount of tax withheld, if any, with respect to
payment on the securities.
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<PAGE>
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with the resales of New Notes received in exchange for Existing
Notes where such Existing Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that for a
period of 120 days after the date on which the Registration Statement is
declared effective, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer that requests such documents in the Letter of
Transmittal for use in connection with any such resale.
The Company will not receive any proceeds from any sale of New Notes by
broker-dealers or any other persons. New Notes received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Notes or a combination
of such methods of resale, at market prices prevailing at the time of resale,
at prices related to such prevailing market prices or negotiated prices. Any
such resale may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions or concessions
from any such broker-dealer and/or the purchasers of any such New Notes. Any
broker-dealer that resells New Notes that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of New Notes and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
The Company has agreed to pay all expenses incident to the Company's
performance of, or compliance with, the Registration Rights Agreement and will
indemnify the holders (including any broker-dealers) and certain parties
related to the holders against certain liabilities, including liabilities under
the Securities Act.
LEGAL MATTERS
Legal matters with respect to the New Notes offered hereby will be passed
upon for the Company by Baker & McKenzie, Miami, Florida.
EXPERTS
The consolidated financial statements of InterAmericas Communications
Corporation and its subsidiaries as of December 31, 1997 and 1996 and for each
of the three years in the period ended December 31, 1997, included in this
Prospectus, have been so included in reliance on the report (which contains
explanatory paragraphs relating to the terms of transactions and relationships
with related parties and to the restatement of its financial statements as
described in Note 5 and Note 2 to the Consolidated Financial Statements,
respectively) of PricewaterhouseCoopers LLP, independent certified public
accountants, given on the authority of said firm as experts in accounting and
auditing.
The financial statements of FirstCom Long Distance S.A., as of December
31, 1997 and 1996 and for each of the two years in the period ended December
31, 1997, included in this Prospectus, have been audited by Langton Clarke y
Cia Ltda.\Arthur Andersen, LLP, independent accountants, as stated in their
report appearing herein, and have been so included in reliance upon such report
given upon the authority of that firm as experts in accounting and auditing.
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<PAGE>
GLOSSARY OF DEFINED TERMS
ATM (ASYNCHRONOUS TRANSFER MODE): An information transfer standard that is
one of a general class of packet technologies that relay traffic by way of an
address contained within the first five bytes of a standard 53 byte-long packet
or cell. The ATM format can be used by many different information systems,
including LANs, to deliver traffic at varying rates, permitting a mix of data,
voice and video.
ATV: Refers to any system of distributing television programming that
generally results in better video and audio quality than that offered by the
NTSC 525-line standard.
BACKBONE: Refers to the major fiber cable carrying the accumulated
transmissions of many businesses connected to a network system. Similar to a
water main, the backbone is the high volume conduit for transmissions input by
multiple smaller connections (last-mile connections) from business offices.
BANDWIDTH: The range of frequencies that can be passed through a medium,
such as glass fibers, without distortion. The greater the bandwidth, the
greater the information carrying capacity of such medium. For fiber optic
transmission, electronic transmitting devices determine the bandwidth, not the
fibers themselves.
CAP (COMPETITIVE ACCESS PROVIDER): A company that provides its customers
with an alternative to the local telephone company for local transport of
private line, special access telecommunications services and switched access
services. CAPs are also referred to in the industry as alternative access
vendors, alternative local telecommunications service providers (ALTS) and
metropolitan area network providers (MANs).
CARRIER'S CARRIER: Refers to a telecommunications network that provides
wholesale telecommunications transmission to other major telecommunications
networks such as long distance, local and cellular telephone companies.
CENTREX: Refers to the switching capability provided by a telephone
company's central office to a customer over telephone lines on a subscription
basis. Centrex allows a customer to receive such services as intra-office call
routing and voice mail from a telephone company's switch, thereby avoiding the
purchase of a private switch known as PBX.
CLEC (COMPETITIVE LOCAL EXCHANGE CARRIER): A company that provides local
exchange services in competition with the incumbent local exchange carrier.
CTC: Compania de Telefonos de Chile, S.A., the PTT of Chile which was
privatized in 1987.
DEDICATED LINES: Telecommunications lines reserved for use by particular
customers along predetermined routes (in contrast to telecommunications lines
within the local telephone PTT's public switched network).
DIGITAL: Describes a method of storing, processing and transmitting
information through the use of distinct electronic or optical pulses that
represent the binary digits 0 and 1. Digital transmission and switching
technologies employ a sequence of these pulses to represent information, as
opposed to the continuously variable analog signal. The precise digital numbers
preclude any distortion (such as graininess or snow, in the case of video
transmission, or static or other background distortion, in the case of audio
transmission).
DROP AND INSERT: Refers to a network's capability to share capacity among
users without dedicating any fiber strand to a single end user.
EARTH STATION: A parabolic antenna and associated electronics for
receiving or transmitting satellite signals.
ENHANCED SERVICES: Refers to private line services, and LAN and WAN
connectivity services.
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ENTEL: Empresa Nacional de Telefonos, S.A. Privatized in 1989, Entel has
historically been Chile's national long distance company. Under the
Multicarrier Agreement, Entel is now licensed to provide all types of
telecommunications services within Chile.
ESN (ENHANCED SERVICES NETWORK): The name used to describe the
communication services providing digital connectivity, primarily for data
applications via frame relay, ATV, or digital interexchange private line
facilities.
FIBER OPTICS: Fiber optic technology involves sending laser light pulses
across glass strands in order to transmit digital information. Fiber optic
cable currently is the medium of choice for the telecommunications and cable
industries. Fiber is resistant to electrical interference and many
environmental factors that affect copper wiring and satellite transmission.
FRAME RELAY: A form of data communications packet switching that uses
smaller packets and requires less error checking than traditional technologies
such as X.25 or SNA. Frame Relay is used in wide area networks to interconnect
LANs and computer systems. Frame Relay was designed to operate at higher speeds
on modern fiber optic networks.
GATEWAY SWITCH: A switch which is used to establish connection with other
carriers.
GHZ OR GIGAHERTZ: A unit of frequency equal to one billion cycles or hertz
per second.
ILEC (INCUMBENT LOCAL EXCHANGE CARRIER): The name used to describe a
company which is the principal local exchange carrier.
INTERCONNECTION: Interconnection of facilities between or among local
exchange carriers, including potential physical collocation of one carrier's
equipment in the other carrier's premises to facilitate such interconnection.
ISP (INTERNET SERVICE PROVIDER): The name used for those companies which
provide its subscribers with access to the Internet.
INTERNET: The name used to describe the global open network of computers
that permits a person with access to exchange information with any other
computer connected to the network.
LAN (LOCAL AREA NETWORK): Refers to the interconnection of computers for
the purpose of sharing files, programs and printers. LANs may include dedicated
computers or file servers that provide a centralized source of shared files and
programs.
LAST MILE: A shorthand reference to the last section of a
telecommunications path to the ultimate end-user which may be less than or
greater than one mile.
LEC (LOCAL EXCHANGE CARRIER): A company providing local telephone
services.
LONG DISTANCE CARRIERS (INTEREXCHANGE CARRIERS): Long distance carriers
provide services between local exchanges on an interstate or intrastate basis.
A long distance carrier may offer services over its own or another carrier's
facilities.
LONG EXCHANGE SERVICES: Services provided within a geographic area
determined by the appropriate state regulatory authority which calls are
transmitted without toll charges to the calling or called party.
MINISTRY OF TRANSPORTATION AND TELECOMMUNICATIONS: Chile's government body
which, through the Undersecretariat of Telecommunications, is responsible for
regulating and registering all telecommunications equipment and services. Its
role is equivalent to that of the Federal Communications Commission in the
United States.
MINISTRY OF TRANSPORTATION, COMMUNICATIONS, HOUSING AND CONSTRUCTION: The
Peruvian government entity with the authority to regulate telecommunications
and with the authority to grant concessions and licenses for telecommunications
service providers such as the Company.
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MULTICARRIER AGREEMENT: The legislation passed by Chile's Ministry of
Telecommunications in 1994 which opens Chile's long distance market to
competition while temporarily limiting the market share in that market which
may be held by the CTC.
NODE: Devices on a network that demand or supply services or where
transmission paths are connected.
PBX (PRIVATE BRANCH EXCHANGE): A customer owned and operated switch on
customer premises, typically used by large businesses with multiple telephone
lines.
PDH (PLESIOCHRONOUS DIGITAL HIERARCHY): Refers to a digital transmission
system that operates as a Time Division Multiplexing (TDM) system by combining
multiple signals of 2 Mbit/s through the use of a multiplexor that operates by
adding "dummy" bits (otherwise known as justification bits). The justification
bits are recognized as such when multiplexing occurs, and discarded as original
signals. This process is known as plesiosynchronous operation. The use of
plesiochronous operation has led to the adoption of the term plesiochronous
digital hierarchy, or PDH.
POPS (POINTS OF PRESENCE): Locations where a long distance carrier has
installed transmission equipment in a service area that serves as, or relays
calls to, a network switching center of that long distance carrier.
PTT (PUBLIC TELEPHONE AND TELEGRAPH): A government or privately-owned
monopoly carrier of telecommunications services or having a dominant market
share such as CTC.
PRIVATE LINE: Refers to a private, dedicated telecommunications connection
between different locations (excluding long distance carriers' POPs).
PUBLIC SWITCHED NETWORK: Refers to traditional public (not dedicated) LEC
networks that switch calls between different customers.
REDUNDANT ELECTRONICS: Describes a telecommunications facility using two
separate electronic devices to transmit the telecommunications signal so that
if one device malfunctions, the signal may continue without interruption.
RIGHT-OF-WAY: Rights negotiated with the appropriate entity, such as a
utility company or transportation agency, to secure access to poles, ducts,
conduits or subway tunnels, as the case may be, to install the fiber optic
lines.
SDH (SYNCHRONOUS DIGITAL HIERARCHY): An open standard for signals used in
optical fiber networks. It provides a basic data transport format that can be
used for all types of digital information (voice, video, data, facsimile and
graphics) and is used internationally. The specified base rate is 51.48 MBPS
(called synchronous transport signal level 1, or STS-1), and specifications
exist for data speeds up to 2.4 Gbps.
SNA (SYSTEMS NETWORK ARCHITECTURE): A tree structured computer network
architecture, with a mainframe host acting as the network control center.
SONET (SYNCHRONOUS OPTICAL NETWORK TECHNOLOGY): Refers to a set of
standards for optical communications transmission systems that define the
optical rates and formats, signal characteristics, performance, management and
maintenance information to be embedded within the signals and the multiplexing
techniques to be employed in optical communications transmission systems. SONET
facilitates the interoperability of dissimilar vendors equipment. SONET
benefits business customers by minimizing the equipment necessary for various
telecommunications applications and supports networking diagnostic and
maintenance features. Allows selective adding and dropping of signals.
SWITCH: A device that opens or closes circuits or selects the paths or
circuits to be used for transmission of information. Switching is the process
of interconnecting circuits to form a transmission path between users.
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SWITCHED SERVICES: Refers to transportation of switched traffic along
dedicated lines between the local telephone company's central offices and the
long distance carrier's POPs.
TELEPORT: Refers to a facility capable of transmitting and receiving
satellite signals for other users.
WAN (WIDE AREA NETWORK): A data network typically extending a LAN outside
a building, over telephone common carrier lines to link other LAN's in other
buildings.
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INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
INTERAMERICAS COMMUNICATIONS CORPORATION
Report of Independent Certified Public Accountants ................................. F-2
Consolidated Balance Sheets as of December 31, 1996 and 1997 and
March 31, 1998 (unaudited) ........................................................ F-3
Consolidated Statements of Operations for the years ended
December 31, 1995, 1996 and 1997 and the three months ended
March 31, 1997 and 1998 (unaudited) ............................................... F-4
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 1995, 1996 and 1997 and the three months ended
March 31, 1998 (unaudited) ........................................................ F-5
Consolidated Statements of Cash Flows for the years ended
December 31, 1995, 1996 and 1997 and the three months ended
March 31, 1997 and 1998 (unaudited) ............................................... F-6
Notes to Consolidated Financial Statements ......................................... F-7
FIRSTCOM LONG DISTANCE S.A.
Report of Independent Accountants .................................................. F-22
Balance Sheets at December 31, 1996 and 1997 ....................................... F-23
Statements of Operations for each of the two years ended December 31, 1996 and 1997 F-24
Statements of Cash Flows for each of the two years ended December 31, 1996 and 1997 F-25
Notes to Financial Statements ...................................................... F-26
</TABLE>
Ch$ = Chilean pesos
ThCh$ = Thousands of Chilean pesos
US$ = United States dollars
ThUS$ = Thousands of United States dollars
U.F. = The Unidad de Fomento, or U.F., is an inflation-indexed, peso
denominated monetary unit used in Chile. The U.F. rate is
set daily in advance based on the change in the Chilean
Price Index of the previous month.
F-1
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders
of InterAmericas Communications Corporation
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of operations and stockholders' equity and of
cash flows present fairly, in all material respects, the financial position of
InterAmericas Communications Corporation and its subsidiaries at December 31,
1997 and 1996, and the results of their operations and their cash flows for
each of the three years in the period ended December 31, 1997, in conformity
with generally accepted accounting principles. These financial statements are
the responsibility of the Company's management; our responsibility is to
express an opinion on these consolidated financial statements based on our
audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates
made by management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for the
opinion expressed above.
As described in Note 5, during 1996 and 1995, the Company had significant
transactions and relationships with related parties. Because of these
relationships, it is possible that the terms of these transactions may not be
the same as those that would result from transactions among wholly unrelated
parties.
As described in Note 2, the Company has restated its financial statements
for the years ended December 31, 1997 and 1996.
PricewaterhouseCoopers LLP
Miami, Florida
March 2, 1998, except as to Note2
which as of August 6, 1998
F-2
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
CONSOLIDATED BALANCE SHEETS
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------- MARCH 31,
1996 1997 1998
------------ ----------- ----------------------
(UNAUDITED)
(AS RESTATED, NOTE 2) (AS RESTATED, NOTE 2)
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ............................. $ 723 $ 14,936 $ 11,428
Restricted cash ....................................... -- 61,028 54,531
Restricted investments ................................ -- 20,404 20,653
Accounts receivable, net .............................. 113 2,367 2,531
Prepaid expenses and other current assets ............. 491 1,208 779
--------- --------- ---------
Total current assets ................................. 1,327 99,943 89,922
Restricted investments ................................. -- 37,488 38,022
Telecommunications networks, net ....................... 3,956 9,348 15,030
Intangible assets, net ................................. 9,568 15,186 14,949
Deferred financing costs ............................... 42 14,971 14,766
--------- --------- ---------
Total assets ......................................... $ 14,893 $ 176,936 $ 172,689
========= ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable ...................................... $ 299 $ 4,023 $ 3,194
Convertible debentures ................................ -- 1,550 --
Accrued interest ...................................... 83 3,925 9,047
Other accrued expenses ................................ 591 2,631 916
Due to related parties ................................ 416 263 --
Lease obligations, current ............................ 114 313 233
Other current liabilities ............................. 323 322 544
--------- --------- ---------
Total current liabilities ............................ 1,826 13,027 13,934
Senior notes, net ...................................... -- 131,626 131,791
Lease obligations, less current portion ................ 248 356 315
--------- --------- ---------
Total liabilities .................................... 2,074 145,009 146,040
--------- --------- ---------
Commitments and contingencies .......................... -- -- --
--------- --------- ---------
Stockholders' equity
Preferred stock, $.001 par value, authorized 10,000,000
shares, none issued .................................
Common stock, $.001 par value, authorized
50,000,000 shares, issued and outstanding as of
December 31, 1996 and 1997 16,152,518 and 19,084,300
shares, respectively ................................ 16 19 19
Additional paid in capital ............................ 23,168 31,562 31,562
Warrants .............................................. -- 26,737 26,737
Accumulated deficit ................................... (10,287) (26,153) (31,431)
Cumulative translation adjustments .................... (78) (238) (238)
--------- --------- ---------
Total stockholders' equity ........................... 12,819 31,927 26,649
--------- --------- ---------
Total liabilities and stockholders' equity ........... $ 14,893 $ 176,936 $ 172,689
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
F-3
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
----------------------------------------------- ------------------------------
1997 1998
1995 1996 1997 (UNAUDITED) (UNAUDITED)
------------- -------------- -------------- ------------- --------------
(AS RESTATED, NOTE 2) (AS RESTATED, NOTE 2)
<S> <C> <C> <C> <C> <C>
Revenues ..................... $ 224 $ 652 $ 1,130 $ 324 $ 3,327
Operating expenses:
Cost of revenues ............ 408 958 1,203 316 2,609
Selling, general and
administrative ............ 1,906 3,272 4,678 816 1,831
Non-cash compensation and
consulting ................ 12 73 4,640 -- --
Depreciation and
amortization .............. 396 842 1,201 278 523
---------- ----------- ----------- ---------- -----------
2,722 5,145 11,722 1,410 4,963
---------- ----------- ----------- ---------- -----------
Loss from operations ......... (2,498) (4,493) (10,592) (1,086) (1,636)
Interest expense ............. (319) (246) (6,521) (215) (5,403)
Interest income .............. 10 80 1,315 18 1,761
Other expense, net ........... (66) (103) (68) -- --
---------- ----------- ----------- ---------- -----------
Net loss ..................... (2,873) (4,762) (15,866) (1,283) (5,278)
========== =========== =========== ========== ===========
Net basic and diluted loss
per share ................... $ (.31) $ (.32) $ (.95) $ (.08) $ (.28)
========== =========== =========== ========== ===========
Weighted average common shares
outstanding ................. 9,407,000 14,795,660 16,667,719 16,152,518 19,084,300
========== =========== =========== ========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
COMMON STOCK
---------------------- ADDITIONAL
PAID-IN
SHARES AMOUNTS CAPITAL
------------ --------- ------------
<S> <C> <C> <C>
Balances at December 31, 1994 ............. 6,316,024 $ 6 $ 2,637
Common stock issued in private
placements ............................... 635,761 1 1,962
Conversion of debt ........................ 4,888,900 5 1,126
Stock issued for acquisitions ............. 111,000 -- 400
Imputed interest on
related party notes ...................... -- -- 16
Stock option grants ....................... -- -- 12
Currency translation adjustment ........... -- -- --
Net loss .................................. -- -- --
--------- --- -------
Balances at December 31, 1995 ............. 11,951,685 12 6,153
Common stock issued in private
placements ............................... 1,939,042 2 7,430
Conversion of debt ........................ 1,011,791 1 1,985
Stock issued for acquisitions ............. 1,250,000 1 7,487
Imputed interest on related
party notes .............................. -- -- 40
Stock option grants ....................... -- -- 73
Currency translation adjustment ........... -- -- --
Net loss .................................. -- -- --
---------- --- -------
Balances at December 31, 1996
(As Restated, Note 2) .................... 16,152,518 16 23,168
Conversion of debt ........................ 1,101,782 1 1,993
Beneficial conversion feature ............. -- -- 810
Reversal of beneficial conversion
feature upon redemption of debt .......... -- -- (344)
Stock issued to a former director in
connection with the FirstCom Long
Distance Acquisition ..................... 100,000 -- 205
Stock issued as compensation to officers
and former directors ..................... 1,350,000 2 3,756
Stock option grants to officers and
former directors ......................... -- -- 882
Conversion of liabilities ................. 80,000 -- 240
Stock issued for past financial
assistance ............................... 300,000 -- 852
Warrants to purchase common stock ......... -- -- --
Currency translation adjustment ........... -- -- --
Net loss .................................. -- -- --
---------- --- -------
Balances at December 31, 1997
(As Restated, Note 2) .................... 19,084,300 19 31,562
Net loss (unaudited) ...................... -- -- --
---------- --- -------
Balances at March 31, 1998 (unaudited)
(As Restated, Note 2) .................... 19,084,300 $19 $31,562
========== === =======
<CAPTION>
ACCRUED CUMULATIVE
DISTRIBUTIONS ACCUMULATED TRANSLATION
AND WARRANT DEFICIT ADJUSTMENT TOTAL
--------------- ------------- ------------ -------------
<S> <C> <C> <C> <C>
Balances at December 31, 1994 ............. $ (6,088) $ (2,652) $ (14) $ (6,111)
Common stock issued in private
placements ............................... -- -- -- 1,963
Conversion of debt ........................ 6,088 -- -- 7,219
Stock issued for acquisitions ............. -- -- -- 400
Imputed interest on
related party notes ...................... -- -- -- 16
Stock option grants ....................... -- -- -- 12
Currency translation adjustment ........... -- -- 44 44
Net loss .................................. -- (2,873) -- (2,873)
--------- --------- ------ ---------
Balances at December 31, 1995 ............. -- (5,525) 30 670
Common stock issued in private
placements ............................... -- -- -- 7,432
Conversion of debt ........................ -- -- -- 1,986
Stock issued for acquisitions ............. -- -- -- 7,488
Imputed interest on related
party notes .............................. -- -- -- 40
Stock option grants ....................... -- -- -- 73
Currency translation adjustment ........... -- -- (108) (108)
Net loss .................................. -- (4,762) -- (4,762)
--------- --------- ------ ---------
Balances at December 31, 1996
(As Restated, Note 2) .................... -- (10,287) (78) 12,819
Conversion of debt ........................ -- -- -- 1,993
Beneficial conversion feature ............. -- -- -- 810
Reversal of beneficial conversion
feature upon redemption of debt .......... -- -- -- (344)
Stock issued to a former director in
connection with the FirstCom Long
Distance Acquisition ..................... -- -- -- 205
Stock issued as compensation to officers
and former directors ..................... -- -- -- 3,758
Stock option grants to officers and
former directors ......................... -- -- -- 882
Conversion of liabilities ................. -- -- -- 240
Stock issued for past financial
assistance ............................... -- -- -- 852
Warrants to purchase common stock ......... 26,737 -- -- 26,737
Currency translation adjustment ........... -- -- (160) (160)
Net loss .................................. -- (15,866) -- (15,866)
--------- --------- ------ ---------
Balances at December 31, 1997
(As Restated, Note 2) .................... 26,737 (26,153) (238) 31,927
Net loss (unaudited) ...................... -- (5,278) -- (5,278)
--------- --------- ------ ---------
Balances at March 31, 1998 (unaudited)
(As Restated, Note 2) .................... $ 26,737 $ (31,431) $ (238) $ 26,649
========= ========= ====== =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------
1995 1996 1997
-------------- -------------- -------------
(AS RESTATED, NOTE 2)
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss ................................................................... $(2,873) $(4,762) $ (15,866)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization expense ..................................... 396 842 1,201
Amortization of deferred financing costs and original issue discounts ..... -- -- 518
Beneficial conversion features on convertible debentures, net ............. -- -- 466
Capitalized interest related to network construction ...................... -- -- (712)
Services exchanged for common stock ....................................... 12 73 852
Non-cash compensation and consulting expense .............................. -- -- 4,640
Interest converted to equity .............................................. 183 49 45
Changes in assets and liabilities:
Accounts receivable ...................................................... (70) (105) (29)
Prepaid expenses and other current assets ................................ 202 (197) (258)
Other assets ............................................................. 76 (53) (64)
Accounts payable and accrued expenses .................................... (4) 299 4,602
Due to related parties ................................................... (66) (251) (179)
Other current liabilities ................................................ -- 171 (105)
Deferred taxes ........................................................... (6) -- --
---------- ------- ----------
Cash used in operating activities ....................................... (2,150) (3,934) (4,889)
--------- ------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of telecommunications network ..................................... (720) (1,453) (2,763)
Restricted cash and investments ............................................ -- -- (118,920)
Acquisition of FirstCom Long Distance ...................................... -- -- (5,799)
Acquisition of Visat ....................................................... (450) -- --
Acquisition of FirstCom Networks ........................................... -- (1,515) --
--------- ------- ----------
Cash used in investing activities ....................................... (1,170) (2,968) (127,482)
--------- ------- ----------
Cash flows from financing activities:
Issuance of Existing Notes and New Notes ................................... -- -- 150,000
Deferred financing costs ................................................... -- -- (7,000)
Proceeds from credit agreements ............................................ -- -- --
Proceeds from convertible debentures ....................................... -- -- 3,500
Repayment of convertible debentures ........................................ -- -- --
Issuance of common stock ................................................... 1,963 7,430 --
Net proceeds from issuance of (repayments to)
notes payable and Bridge Notes ............................................ 893 (1,061) --
Additions to notes payable to related party ................................ 407 1,232 --
(Payments under) proceeds from leasing obligations ......................... -- (31) 84
--------- ------- ----------
Cash provided by financing activities, net .............................. 3,263 7,570 146,584
--------- ------- ----------
Net increase (decrease) in cash and cash equivalents ........................ (57) 668 14,213
Effect of exchange rate changes on cash ..................................... -- (2) --
Cash and cash equivalents at beginning of year .............................. 114 57 723
--------- --------- ----------
Cash and cash equivalents at end of year .................................... $ 57 $ 723 $ 14,936
========= ========= ==========
Cash paid for interest ..................................................... $ 2 $ 153 $ 545
========= ========= ==========
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------------------------
1997 1998
(UNAUDITED) (UNAUDITED)
------------- ----------------------
(AS RESTATED, NOTE 2)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss ................................................................... $ (1,283) $ (5,278)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization expense ..................................... 278 523
Amortization of deferred financing costs and original issue discounts ..... -- 297
Beneficial conversion features on convertible debentures, net ............. 310 --
Capitalized interest related to network construction ...................... (132) (206)
Services exchanged for common stock ....................................... -- --
Non-cash compensation and consulting expense .............................. -- --
Interest converted to equity .............................................. -- --
Changes in assets and liabilities:
Accounts receivable ...................................................... 84 (164)
Prepaid expenses and other current assets ................................ (306) 534
Other assets ............................................................. (111) (31)
Accounts payable and accrued expenses .................................... (84) 2,678
Due to related parties ................................................... -- (263)
Other current liabilities ................................................ 242 122
Deferred taxes ........................................................... -- --
-------- --------
Cash used in operating activities ....................................... (1,002) (1,788)
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of telecommunications network ..................................... (392) (5,762)
Restricted cash and investments ............................................ (350) 5,713
Acquisition of FirstCom Long Distance ...................................... -- --
Acquisition of Visat ....................................................... -- --
Acquisition of FirstCom Networks ........................................... -- --
-------- --------
Cash used in investing activities ....................................... (742) (49)
-------- --------
Cash flows from financing activities:
Issuance of Existing Notes and New Notes ................................... -- --
Deferred financing costs ................................................... -- --
Proceeds from credit agreements ............................................ 2,054 --
Proceeds from convertible debentures ....................................... -- --
Repayment of convertible debentures ........................................ -- (1,550)
Issuance of common stock ................................................... -- --
Net proceeds from issuance of (repayments to)
notes payable and Bridge Notes ............................................ -- --
Additions to notes payable to related party ................................ -- --
(Payments under) proceeds from leasing obligations ......................... -- (121)
-------- --------
Cash provided by financing activities, net .............................. 2,054 (1,671)
-------- --------
Net increase (decrease) in cash and cash equivalents ........................ 310 (3,508)
Effect of exchange rate changes on cash ..................................... (17) --
Cash and cash equivalents at beginning of year .............................. 723 14,936
-------- --------
Cash and cash equivalents at end of year .................................... $ 1,016 $ 11,428
======== ========
Cash paid for interest ..................................................... $ 61
========
</TABLE>
Capital lease obligations of $221 and $172 were incurred in 1995 and 1996
respectively.
During 1997 and 1998, the Company capitalized $712 and $206, respectively, of
interest costs related to the construction of a fiber optic network.
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
1. ORGANIZATION AND BUSINESS FORMATION
InterAmericas Communications Corporation ("the Company") is a provider of
telecommunications services in Chile and Peru. The Company has historically
operated as a Latin American telecommunications development stage company which
has developed its operations in Latin America through the acquisition of
holding and operating companies that own licenses, concessions or rights-of-way
in what the Company believes to be attractive markets. The Company operates in
Chile as Visat, S.A. ("Visat"), FirstCom Networks, S.A. ("FirstCom Networks"),
formerly Hewster Chile, S.A., and FirstCom Long Distance, S.A. ("FirstCom Long
Distance"), formerly Iusatel Chile, S.A., and in Peru as Red de Servicios de
Telecomunicaciones, S.A. ("Resetel").
Visat holds a government concession to provide intermediate
telecommunications services, including the installation and operation of a
network of 12 satellite earth stations and a switch throughout Chile, which
allows the Company to transmit either "C" or "KU" bands for satellite
communications and broad band distribution. FirstCom Networks is engaged in the
development of a fiber optic network and provides various network installation
and systems integration services in Santiago, Chile. FirstCom Long Distance
provides domestic and international long distance services in Chile. FirstCom
Long Distance's long distance traffic switched and transported, in part,
through its own gateway switch and satellite earth station, as well as through
interconnections with other long distance carriers. Resetel is building a fiber
optic telecommunications network in Lima and Callao, Peru.
During the three years ended December 31, 1997, the Company made the
following acquisitions, each of which was accounted for as a purchase. The
consolidated financial statements include the operating results from the
effective date of acquisition.
ACQUISITION OF RESETEL
On May 7, 1996, the Company acquired 100% of Resetel's outstanding stock
in exchange for 1,250,000 shares of Common Stock of the Company. The purchase
price of approximately $7,490 has been substantially allocated to a local
carrier concession. A fair value of $5.99 was assigned to each share issued to
the shareholders of Resetel (See Note 2).
ACQUISITION OF FIRSTCOM NETWORKS
On July 31 and September 2, 1996 the Company acquired 99% and 1%,
respectively, of FirstCom Networks' outstanding stock for $1,500 in cash.
Goodwill of approximately $1,300 was recorded representing the excess cost over
the fair value of net assets acquired in the transaction.
ACQUISITION OF FIRSTCOM LONG DISTANCE
On December 17, 1997, the Company acquired 100% of FirstCom Long
Distance's outstanding stock for $5,900 million in cash. In addition, the
Company incurred other direct acquisition costs totaling approximately $300,
which includes the fair market value of 100,000 shares of Company Common Stock
paid to a former director for his services in facilitating the transaction. The
purchase agreement provides for an additional payment of up to $850 if FirstCom
Long Distance achieves certain operating results for the year ending December
31, 1998.
The excess purchase price, of approximately $6,200, over the fair value of
the net assets acquired has been allocated to FirstCom Long Distance's
telephone carrier concession. The Company has
F-7
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
1. ORGANIZATION AND BUSINESS FORMATION--(CONTINUED)
accounted for the acquisition of FirstCom Long Distance as if it occurred on
December 31, 1997, since FirstCom Long Distance's estimated operating results
for the period from December 17, 1997 to December 31, 1997 were not material.
OTHER RELATED ACQUISITION DISCLOSURES
The following unaudited pro forma summary presents the consolidated
results of operations as if the acquisition of FirstCom Networks, Resetel and
FirstCom Long Distance had occurred at the beginning of the periods presented,
and do not purport to be indicative of the results that actually would have
occurred if the acquisition had been consummated as of those dates or of
results which may occur in the future:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------
1996 1997
------------ -----------
(UNAUDITED)
<S> <C> <C>
Revenue .................... $ 8,614 $ 11,145
Net loss ................... (33,011) (36,702)
Net loss per share ......... $ (2.22) $ (2.20)
</TABLE>
The Company assesses the carrying amount of its long-lived assets for
impairment whenever events or changes in circumstances indicate that the
carrying amount may not be recoverable. Measurement of any impairment would
include a comparison of estimated future cash flows to be generated during the
remaining life of each intangible asset to its net carrying value. Following is
a summary of the intangible assets resulting from the Company's acquisitions:
<TABLE>
<CAPTION>
DECEMBER 31, ESTIMATED
----------------------- USEFUL
1996 1997 LIFE
--------- ----------- ----------
<S> <C> <C> <C>
Satellite transmission rights .......... $1,166 $ 1,166 10 years
Concessions ............................ 7,494 13,770 20 years
Goodwill ............................... 1,289 1,289 10 years
------ --------
9,949 16,225
Less: accumulated amortization ......... (381) (1,039)
------ --------
$9,568 $ 15,186
====== ========
</TABLE>
F-8
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
2. RESTATED FINANCIAL INFORMATION AND AMENDED QUARTERLY FINANCIAL INFORMATION
During August 1998 the Company has restated its December 31, 1997 and 1996
financial statements to reflect the effect of revising the price per share of
Company common stock issued in connection with the May 1996 acquisition of
Resetel (see Note 1) from $2.25 to $5.99 per share. The revised price per share
is based on the average closing price of the Company's common stock for the
period of 14 days before and after the date the terms of the acquisition were
announced. The previously recorded purchase price was based on the Company's
March 1996 private placement. The effect of the change in price per share
increased the reported purchase price from approximately $2,800 to $7,500. The
effect of the restatement on (1) the Company's annual statements of operations,
related to increased amortization expense, was to increase net loss by $136 and
$234, resulting in a net loss of $4,762 and $15,866 for the years ended
December 31, 1996 and 1997, respectively (2) on the Company's stockholders'
equity, related to the increased purchase price, was to increase additional
paid in capital by $4,675, resulting in additional paid in capital of $23,168
and $31,562 as of December 31, 1996 and 1997, respectively and (3) on the
Company's net basic and diluted loss per share, related to increased
amortization expense of $0.01 per share, resulting in net basic and diluted
loss per share of $0.32 and $0.95 for the years ended December 31, 1996 and
1997. The related impact on the interim March 31, 1998 unaudited financial
statements was to increase net loss by $58, increase additional paid in capital
by $4,675 and increase net basic and diluted loss per share by $0.01.
During October 1997 and August 1998 the Company amended certain financial
information as reported on Forms 10-QSB during 1996 and 1997. A summary of the
original and amended unaudited financial information and a description of the
related impact of the Company's statement of operations follows:
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS NINE MONTHS
ENDED ENDED ENDED
MARCH 31, JUNE 30, SEPTEMBER 30,
1996 1996 1996
-------------- --------------- ---------------
<S> <C> <C> <C>
Revenues ................................. $ 58 $ 113 $ 477
Loss from Operations ..................... (591) (1,646) (2,911)
Net loss, as amended ..................... $ (621) $(1,711) $(2,981)
====== ======= =======
Net basic and diluted loss per
share, as amended ....................... $(0.05) $(0.13) $(0.21)
====== ======= =======
General and administrative
expenses ................................ 247 (a) 247 (a)
Depreciation expense ..................... 110 (a) 240 (a) 240 (a)
Interest expense ......................... 36 (a) 36 (a)
Amortization expenses .................... 64 (c) 122 (c)
------- -------
Net loss, as originally reported ......... $ (511) $(1,124) $(2,336)
====== ======= =======
Net basic and diluted loss per
share, as originally reported ........... $(0.04) $(0.08) $(0.16)
====== ======= =======
<CAPTION>
THREE MONTHS SIX MONTHS NINE MONTHS
ENDED ENDED ENDED
MARCH 31, JUNE 30, SEPTEMBER 30,
1997 1997 1997
-------------- ---------------- -----------------
<S> <C> <C> <C>
Revenues ................................. $ 324 $ 585 $ 853
Loss from Operations ..................... (1,085) (2,384) (8,574)
Net loss, as amended ..................... $(1,283) $ (2,881) $ (10,069)
======= ======== =========
Net basic and diluted loss per
share, as amended ....................... $ (0.08) $ (0.18) $ (0.61)
======= ======== =========
General and administrative
expenses ................................
Depreciation expense .....................
Interest expense ......................... 178 (b)
Amortization expenses .................... 58 (c) 116 (b) 176 (c)
------- -------- ---------
Net loss, as originally reported ......... $(1,047) $ (2,765) $ (9,893)
======= ======== =========
Net basic and diluted loss per
share, as originally reported ........... $ (0.06) $ (0.17) $ (0.61)
======= ======== =========
</TABLE>
- ----------------
(a) Reflects (i) adjustment identified in the fourth quarter of 1996 to provide
depreciation on assets placed in use during the first quarter of 1996,
for which depreciation initially had not commenced until the second
quarter of 1996 and (ii) adjustments for various expenses and costs
identified by the Company in the fourth quarter of 1996 as relating to
earlier 1996 quarters.
(b) Reflects additional interest identified in the fourth quarter of 1997
related to the beneficial conversion feature inherent in the 7%
Convertible Debentures issued in February 1997 (see Note 4). Of the total
adjustment of $310, the amount of $132 was capitalized as part of the
Company's fiber optic network.
(c) Reflects the quarterly effect of the Resetel purchase price described in
the introductory language to the above table.
F-9
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND RELATED ITEMS
UNAUDITED INTERIM CONSOLIDATED FINANCIAL INFORMATION
The interim financial data as of March 31, 1998 and for the three months
ended March 31, 1998 and 1997 is unaudited. The information reflects all
adjustments, consisting only of normal recurring adjustments that, in the
opinion of management, are necessary to present fairly the financial position
and results of operations of the Company for the periods indicated. Results of
operations for the interim periods are not necessarily indicative of the
results of operations for the full year.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company
and its subsidiaries. All significant intercompany balances and transactions
have been eliminated in consolidation.
FOREIGN CURRENCY TRANSLATION
Through December 31, 1997, the Company's subsidiaries used the following
functional currency: Resetel-Peruvian sole, FirstCom Networks and VISAT-Chilean
peso. As such, assets and liabilities are translated at end-of-period exchange
rates. Income, expense and cash flows are translated at weighted average
exchange rates for the period. The resulting currency translation adjustments
are accumulated and reported as a component of stockholders' equity.
As a result of (1) the Company's U.S. dollar denominated senior note
financing during October 1997, (2) the acquisition of FirstCom Long Distance on
December 17, 1997 and (3) the fact that FirstCom Long Distance and FirstCom
Networks operate as one functional entity of which FirstCom Long Distance
represents the majority of the operations, effective January 1, 1998 the
Company's Chilean subsidiaries will use the U.S. dollar as their functional
currency. Management does not expect this change to have a significant impact
on the Company's results of operations.
Effective January 1, 1998 the Company's Peruvian subsidiary, Resetel, will
use the U.S. dollar as its functional currency. Although, through December 31,
1997 Resetel incorrectly used the local currency as its functional currency, the
impact of using the U.S. Dollar as Resetel's functional currency on prior
periods is not significant. Management does not expect this change to have a
significant impact on the Company's results of operations.
RECLASSIFICATIONS
Certain amounts in the 1995 and 1996 consolidated financial statements
were reclassified to conform with the 1997 presentation.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amount of cash and cash equivalents, restricted cash,
accounts receivable and accounts payable approximated fair value based on the
short maturity of these financial instruments. The carrying amount of debt and
capital leases approximated fair value based on the prevailing market rates
currently available to the Company for similar financial instruments.
CASH AND CASH EQUIVALENTS
The Company considers all certificates of deposit and highly liquid debt
instruments purchased with a maturity of three months or less to be cash
equivalents.
F-10
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND RELATED ITEMS--(CONTINUED)
RESTRICTED CASH AND INVESTMENTS
Restricted cash represents proceeds from the senior note offering (see
Note 4) to be used, in accordance with the terms of the related indenture
agreement, primarily for the purchase of the telecommunications equipment in
Peru and Chile. Restricted investments are U.S. Treasury Notes that are
restricted for the repayment of interest on the senior notes, and are stated at
amortized cost, which approximated fair value at December 31, 1997. These
investments mature at various dates through October 2000. Management designated
these investments as held-to-maturity.
TELECOMMUNICATIONS NETWORKS
Telecommunications networks are recorded at cost and are depreciated on a
straight-line method over the estimated useful lives of the related assets.
Construction, engineering, interest and labor costs directly related to the
development of the Company's networks are capitalized. The Company begins
depreciating these costs when the networks become commercially operational.
Telecommunications networks consists of:
<TABLE>
<CAPTION>
DECEMBER 31, ESTIMATED
----------------------- USEFUL
1996 1997 LIFE
--------- ----------- ----------
<S> <C> <C> <C>
Telecommunications equipment ........................ $2,868 $ 6,547 10 to 20
Telecommunications equipment pending installation and
construction in progress ........................... 1,021 2,627 --
Office equipment and furniture ...................... 1,007 1,663 3 to 7
------ --------
4,896 10,837
Less: accumulated depreciation ...................... (940) (1,489)
------ --------
$3,956 $ 9,348
====== ========
</TABLE>
ACCOUNTING ESTIMATES
The preparation of financial statements require management to make
estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from those
estimates.
F-11
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND RELATED ITEMS--(CONTINUED)
ACCRUED EXPENSES
Accrued expenses consist of:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------
1996 1997
------ ---------
<S> <C> <C>
Purchases of telecommunication equipment ......... $376 $ --
Professional fees ................................ 63 622
Payroll .......................................... 14 447
Other ............................................ 138 640
---- ------
$591 $1,709
==== ======
</TABLE>
COMMON STOCK EXCHANGED FOR OTHER THAN CASH
Common stock exchanged for services and as inducements to make loans have
been recorded as consulting, compensation or interest expense and additional
paid in capital at the grant date fair value of the common stock. Through
November 1996, the grant date fair value of the common stock was estimated by
the Company's Board of Directors. After November 1996, the grant date fair
value of the common stock was based on the NASDAQ trading price.
REVENUE RECOGNITION
Revenue is recognized as services are provided.
NET LOSS PER SHARE
The computation of net loss per share of common stock is computed by
dividing net loss for the year by the weighted average number of shares
outstanding during the year. The weighted average number of shares outstanding
for the years ended December 31, 1995, 1996 and 1997 excludes approximately 2.2
million, 4.3 million and 15.6 million, respectively of antidilutive stock
options and warrants.
STOCK BASED COMPENSATION
The Company accounts for stock-based compensation using the intrinsic
value method which requires the recognition of related expense on the grant
date when the exercise price of the stock option granted is less then the fair
value of the underlying common stock. Additionally, the Company provides pro
forma disclosure of net loss and loss per share as if the fair value based
method had been applied in measuring compensation expense for stock options
granted in 1997 and 1996.
The policy of the Company has been to grant options at an exercise price
equal to the estimated market value of the Company's common stock at the date
of the grant, except for certain grants made in 1995 and 1997 for which $12 and
$882, respectively was charged to expense. Had compensation costs for the
Company's stock option grants been determined based on the fair value at the
grant dates of options granted consistent with the fair value based method, the
Company's loss and loss per share would have been increased to the pro forma
amounts indicated below:
F-12
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND RELATED ITEMS--(CONTINUED)
<TABLE>
<CAPTION>
1996 1997
------------ -------------
<S> <C> <C> <C>
Net loss .................... As Reported $ (4,762) $ (15,866)
Pro forma (7,646) (21,471)
Net loss per share .......... As Reported (.32) ( .95)
Pro forma (.52) (1.29)
</TABLE>
The fair value of each option grant is estimated on the date of grant
using the Black-Scholes option-pricing model with the following
weighted-average assumptions; volatility of 90%, risk-free interest rate of
6.72%, zero dividend yield and expected lives ranging from 4 to 8 years. The
weighted average fair value of options granted in 1996 was $2.38. The weighted
average fair value of stock options granted during 1997 (i) with a strike price
equivalent to the grant date fair value of the underlying common stock was
$2.60, and (ii) with a strike price less than the grant date fair value of the
underlying common stock was $2.26.
INCOME TAXES
The Company uses the asset and liability method of accounting for income
taxes. Under this method, deferred tax assets and liabilities are determined
based on the differences between financial reporting and tax bases of assets
and liabilities and are measured using the enacted tax rates and laws that will
be in effect when the differences are expected to reverse.
The Company is subject to federal, state and foreign income taxes but has
not incurred a liability for such taxes due to losses incurred. At December 31,
1997 the Company has net tax operating loss carryforwards of approximately
$16,100 for U.S. income tax purposes and approximately $21,300 for foreign
income tax purposes. These carryforwards are available to offset future taxable
income, if any, and expire for U.S. income tax purposes in the years 2007
through 2012. The foreign net operating loss carryforwards related (1) to Peru,
$665 expire in the years 2000 through 2001 and (2) to Chile, $20,600, do not
expire.
The tax effects of temporary differences that give rise to significant
portions of the deferred tax asset are presented below:
<TABLE>
<CAPTION>
1996 1997
----------- -----------
<S> <C> <C>
Net operating loss carryforwards .......... $ 1,900 $ 8,953
Accounts receivable ....................... -- 438
Non-cash compensation ..................... -- 309
-------- --------
1,900 9,700
Less: valuation allowance ................. (1,900) (9,700)
-------- --------
Net deferred tax asset .................... $ -- $ --
======== ========
</TABLE>
F-13
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND RELATED ITEMS--(CONTINUED)
Income tax expense for the years ended December 31, 1997, 1996 and 1995
differred from the amounts computed by applying the statutory income tax rate
applicable to the countries in which the Company and its subsidiaries operate
as a result of the following:
<TABLE>
<CAPTION>
1995 1996 1997
---------- ------------ ------------
<S> <C> <C> <C>
Computed "expected" tax benefit .......... $ (773) $ (1,020) $ (4,929)
Increase in valuation allowance .......... 773 1,020 4,929
------ -------- --------
$ -- $ -- $ --
====== ======== ========
</TABLE>
The domestic and foreign components of net loss are as follows:
<TABLE>
<CAPTION>
1995 1996 1997
------------ ------------ -------------
<S> <C> <C> <C>
Domestic .......... $ (1,710) $ (2,021) $ (12,402)
Foreign ........... (1,163) (2,605) (3,230)
-------- -------- ---------
$ (2,873) $ (4,626) $ (15,632)
======== ======== =========
</TABLE>
The deferred tax assets have been fully offset by a valuation allowance
resulting from the uncertainty surrounding the future realization of the net
operating loss carryforwards.
RECENT ACCOUNTING PRONOUNCEMENTS
During June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income" and SFAS No. 131 "Disclosures About Segments of an Enterprise and
Related Information" effective for fiscal years beginning after December 1997.
Management does not expect Statements No. 130 and 131 to have a significant
impact on the Company's reporting and disclosure requirements in 1998.
Statement No. 130 establishes standards for reporting and display of
comprehensive income and its components (revenues, expenses, gains and losses)
in a full set of general-purposes financial statement. Statement No. 131
establishes standards for the way public business enterprises report
information about operating segments in annual financial statements and
requires that those enterprises report selected information about operating
segments in interim financial reports issued to shareholders
4. CAPITALIZATION
The Company has had material transactions impacting its capitalization
during the past three years. The following information, in addition to the
disclosures in Note 5--Related Party Transactions and Note 6--Stock Options and
Warrants, describes the most significant of these transactions.
SENIOR NOTE OFFERING
On October 27, 1997, the Company completed a private offering (the "Senior
Note Offering") pursuant to Rule 144A and Regulation S promulgated under the
U.S. Securities Act of 1933 of 150,000 Units, consisting of an aggregate of
$150,000 aggregate principal amount of 14% Existing Notes and New Notes due
October 27, 2007 ("Existing Notes and New Notes") and 5,250,000 warrants (the
"Unit
F-14
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
4. CAPITALIZATION--(CONTINUED)
Warrants") to purchase 5,250,000 shares of Common Stock of the Company at an
exercise price of $4.40 per share. In addition, UBS Securities LLC, the initial
purchaser of the Units in the Senior Note Offering, was granted 2,250,000
warrants (the "Initial Warrants") to acquire 2,250,000 shares of Common Stock
of the Company at an exercise price of $4.40 per share. The Unit Warrants are
exercisable on the earlier of April 27, 1998 or the registration with the SEC
of the Existing Notes and New Notes and the Initial Warrants are immediately
exercisable and both expire on October 27, 2007. Interest is payable
semi-annually beginning on April 1, 1998.
The fair value of the Unit Warrants which is approximately $18,500 is
reflected as an original issue discount on the Existing Notes and New Notes in
the accompanying consolidated balance sheet. Additionally, the Company incurred
direct financing costs of approximately $14,900, including the fair value of
$7,900 of the Initial Warrants, as determined by an investment bank. The
original issue discount and direct financing costs are being amortized to
interest expense over ten years using the level yield method with an effective
interest rate of 18.9 percent. The fair value of the Unit Warrants and Initial
Warrants was determined by an investment banking firm using the Black-Scholes
option pricing model with the following assumptions: volatility of 90%,
risk-free interest rate of 6.24%, zero dividend yield and an expected life of
10 years.
The Existing Notes and New Notes are redeemable on or after October 27,
2002 at the option of the Company, in whole or in part from time to time, at
specified redemption prices declining annually to 100% of the principal amount
on or after October 27, 2005, plus accrued and unpaid interest. Upon a change
in control, the Company is required to make an offer to purchase the Existing
Notes and New Notes at a purchase price equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest, if any. The
Existing Notes and New Notes contain certain restrictive covenants that, among
other things, limit the ability of the Company to incur additional debt or
issue preferred stock, pay dividends, enter into related party transactions or
make certain other restricted payments.
The net proceeds to the Company from the Senior Note Offering were
approximately $142,500, after deducting the underwriting discount and offering
expenses. Approximately $57,300 of the proceeds were used to purchase a
portfolio of securities that was deposited in escrow for payment of interest on
the Existing Notes and New Notes through October 27, 2000 and, under certain
circumstances, as security for repayment of principal of the Existing Notes and
New Notes. During November and December of 1997, the Company used the net
proceeds of the Senior Note Offering as follows: (i) $5,900 for the acquisition
of FirstCom Long Distance, (ii) $4,300 for the purchase of telecommunications
equipment and the repayment of its subsidiaries liabilities, (iii) $2,600 to
settle all of the Company's outstanding obligations related to convertible
debentures and (iv) $975 to repay certain bridge notes. The Company expects to
use the remaining proceeds primarily to expand and operate the Company's
telecommunications businesses in Peru and Chile.
In addition to the deposit of a portion of the proceeds from the Senior
Note Offering to fund interest payments on the Existing Notes and New Notes
through October 2000, the Company deposited $62 million of the proceeds from
the Senior Note Offering in a separate account under a trustee's control
pending application of such funds by the Company for the payment of: (a)
Permitted Expenditures; (b) in the event of a Change in Control of the Company,
the Change in Control Payment and (c) in the event of a Special Offer to
Purchase, or a Special Mandatory Redemption, the purchase or redemption price
in connection therewith.
F-15
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
4. CAPITALIZATION--(CONTINUED)
CONVERTIBLE DEBENTURES
On June 30, 1995, the Company converted $6,088 of convertible debt into
4.5 milion shares of the Company's common stock.
On July 31, 1995, the Company converted $781 of an outstanding bridge loan
into 388,900 shares of the Company's common stock.
On February 3, 1997, the Company issued $1,500 aggregate principal amount
of 7% Convertible Debentures due February 3, 2000 and warrants to purchase an
aggregate 100,000 shares of the Company's Common Stock. Pursuant to the terms
of the 7% Convertible Debentures (i) the conversion price was equivalent to the
lesser of the fair value of the Company's common stock on the date the debt was
issued or 83% of the fair value of the Company's common stock at the date of
conversion, (ii) the Company was obligated to register with the SEC all shares
of common stock underlying the warrants and debentures, and (iii) the failure
to register such shares of common stock by June 30, 1997 would result in an
additional weekly interest charge of 0.1 percent on the outstanding principal
balance. On May 6, 1997 the Company issued $2,000 aggregate principal amount of
8% Convertible Debentures due April 30, 1998 and warrants to purchase an
aggregate 20,000 shares of the Company's Common Stock (collectively the
"Convertible Debentures"). Pursuant to the terms of the 8% Convertible
Debentures (i) the conversion price was equivalent to the lesser of the fair
value of the Company's common stock on the date the debt was issued or 80% of
the fair value of the Company's common stock on the date of conversion, (ii)
the Company was obligated to register with the SEC all shares of common stock
underlying the warrants and debentures, and (iii) the failure to register such
shares of common stock by August 6, 1997 would result in an additional cash
payment every 30 days thereafter of 3% of the original principal amount.
The Convertible Debentures were issued with beneficial conversion features
due to the fact that the holders may convert the debt at any time prior to the
maturity at a conversion price less than the conversion date fair value of the
Company's common stock. As a result, the Company recorded $810 as interest cost
and additional paid in capital related to the value of the beneficial
conversion feature.
During 1997, the Company issued 1,101,782 shares of Common Stock in
connection with the conversion of $1,950 aggregate principal amount of the
Convertible Debentures, plus related accrued interest. Effective December 31,
1997 the Company entered into an agreement for early extinguishment of the
Company's remaining financial obligations related to the Convertible Debentures
for $2,600 in cash. The cash payment was made on January 5 and 8, 1998.
Such settlement, including the related loss on extinguishment of $255
classified as interest expense, has been accrued for as of December 31, 1997
and related to the following items:
<TABLE>
<S> <C>
Outstanding principal ......... $1,550
Accrued interest .............. 128
Redemption premiums ........... 335
Penalties ..................... 587
------
$2,600
======
</TABLE>
F-16
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
4. CAPITALIZATION--(CONTINUED)
The above redemption premiums and penalties have been included in interest
expense in the accompanying statement of operations. As a result of such
settlement and redemption of outstanding principal, $344 of paid-in capital
related to the beneficial conversion feature was reversed.
PRIVATE ISSUANCES OF COMMON STOCK
In October 1994, the Company commenced a private offering of its common
stock. The Company issued 315,714 shares of common stock and raised $1,100
prior to December 31, 1994. In early 1995, the Company closed the private
placement, having issued a total of 951,476 shares of common stock and raised a
total of $3,000, net of expenses of $260.
In February 1996, the Company commenced a private offering of its common
stock. The Company issued 500,000 shares of common stock and raised $1,120
through March 31, 1996, net of expenses of $80. In June 1996, the Company
commenced a private offering of its common stock. The Company issued 1,439,000
shares of common stock and raised $6,400 through August 1996, net of expenses
of $520.
During September 1997, the Company's Board of Directors authorized the
issuance of 850,000 shares of common stock to two officers and the Company
recognized related non-cash compensation expense of $2,338.
5. RELATED PARTY TRANSACTIONS
TELECTRONIC S.A. AND MR. HERNAN STREETER
During the three years ended December 31, 1997, the Company entered into
certain transactions with Telectronic S.A. and its founders, Mr. George A.
Cargill and Mr. Eleazar Donoso. Mr. Cargill and Mr. Donoso are both Company
shareholders. Mr. Cargill has been a director of the Company since 1994.
During the three years ended December 31, 1997, the Company entered into
several transactions with Mr. Hernan Streeter. Mr. Streeter formerly served the
Company as its Chief Executive Officer and its Chairman of the Board. In
addition, he is a principal shareholder of the Company. The Company paid
salaries to Mr. Streeter of $120 and $110 during 1995 and 1996, respectively.
As compensation for his service as a director of the Company, from 1994 to
1997, the Company granted Mr. Cargill 290,000 stock options with a weighted
average exercise price of $2.09. The exercise price of such grants was equal to
the grant date fair value of the underlying Common Stock.
The Company purchased approximately $205, $172 and $77 of certain
telecommunication equipment in 1995, 1996 and 1997, respectively, from
Telectronic, S.A.
On July 24, 1995, Mr. Donoso received 1,425,000 shares of Common Stock
(the "Donoso Shares") from the Company in exchange for his ownership interest
in HSI, a company which was acquired by the Company, in a transaction which was
exempt from the registration requirements of the Securities Act pursuant to
Regulation S and Section 4(2) thereof. On September 14, 1995, Mr. Donoso loaned
the Donoso Shares to Laura Investments, Ltd., a company owned and controlled by
Mr. Streeter.
F-17
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
5. RELATED PARTY TRANSACTIONS--(CONTINUED)
From September 14, 1995 to March 1996, Laura Investments, Ltd. loaned the
Company an aggregate amount of $1,631,550. During March 1996, the Company
converted the original principal amount of $1,631,550, plus accrued interest of
$7,000 into 839,235 shares of Common Stock which were registered in the name of
Laura Investments, Ltd. and issued in a transaction which was exempt from the
registration requirements of the Securities Act pursuant to Regulation S and
Section 4(2) thereof.
During September 1997, Laura Investments Ltd. agreed to transfer 839,235
shares of the Company's Common Stock to Mr. Donoso in an attempt to satisfy its
obligatons to Mr. Donoso in connection with the transfer of the Donoso Shares
to Laura Investments, Ltd. which occurred on September 14, 1995. However, Mr.
Donoso claimed that the Company owed him additional shares of Common Stock in
consideration of the initial transaction between Mr. Donoso and Laura
Investments Ltd. on September 14, 1995 (or the equivalent monetary
consideration). The Company issued 300,000 shares of Common Stock to Mr. Donoso
in October 1997 in settlement of all outstanding claims by Mr. Donoso against
the Company. The Company recognized interest expense of $852,000 related to the
aggregate fair value of such shares of Common Stock issued to Mr. Donoso. This
transaction was exempt from the registration requirements of the Securities Act
pursuant to Sections 4(2) and 4(6) thereof.
During 1997, the Company issued and redeemed $200 of bridge notes from Mr.
Cargill. In connection with such bridge notes Mr. Cargill received 20,000
warrants to purchase the Company's common stock at an exercise price of $2.56
per warrant. The fair value, $21, of such warrants (determined using the
Black-Scholes option pricing model with the following assumptions: volatility
of 90%, risk free interest rate of 6.7%, zero dividend yield and expected life
of two years) was recorded as original issue discount and subsequently expensed
upon repayment of the bridge notes.
As compensation for his services as a director and Chief Executive Officer
of the Company, from 1994 to 1996, the Company granted Mr. Streeter 510,000
stock options with a weighted average exercise price of $1.91. The exercise
price of such grants was equal to the grant date fair value of the underlying
Common Stock.
Mr. Streeter was the founder and Chief Executive Officer of FirstCom
Networks, which was acquired by the Company during 1996. Prior to its
acquisition, FirstCom Networks provided approximately $237 of telecommunication
services to the Company. Mr. Streeter also was the primary shareholder and
General Manager of FirstCom Long Distance, which was acquired by the Company
during 1997. Prior to this acquisition, the Company made sales of $162 to
FirstCom Long Distance. Pursuant to provisions of the FirstCom Long Distance
purchase agreement, the Company agreed to pay Mr. Streeter a consulting fee of
$120 during 1998.
MAROON BELLS CAPITAL PARTNERS ("MBCP")
During the three years ended December 31, 1997, the Company entered into
certain transactions with MBCP. Two former directors of the Company, Paul Moore
and Phillip Magiera, are principals in MBCP. MBCP has provided certain
consulting and financial advisory services to the Company during the past three
years.
F-18
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
5. RELATED PARTY TRANSACTIONS--(CONTINUED)
As compensation for their services as directors of the Company, from 1994
to 1996, the Company granted MBCP and its principals 1,015,000 stock options
with a weighted average exercise price of $2.12. The exercise price of such
grants was equal to the grant date fair value of the underlying Common Stock.
During 1995, the Company recognized $100 as a financial advisory fee to
MBCP. During 1996, the Company purchased $493 in equipment whereby MBCP acted
as a broker. Additionally, during 1996 and 1997, the Company made expense
reimbursements of $219 and $132, respectively, to MBCP and its principals.
During 1996 and 1997, the Company converted $316, plus accrued interest of
$30, and $240, respectively, of outstanding liabilities to MBCP into 172,506
and 80,000 shares, respectively, of the Company's Common Stock.
During October 1997, the Company entered into an agreement with MBCP and
its principals, Theodore Swindells, Paul Moore and Phillip Magiera, to
compensate them for services rendered to the Company. The services provided by
Messrs. Moore and Magiera related to their functions as directors of the
Company. Pursuant to such agreement, the Company made a cash payment to MBCP of
$500 at the closing of the Senior Note offering and issued to each of Messrs.
Moore and Magiera 250,000 shares of Common Stock and options to acquire 250,000
shares of Common Stock at an exercise price of $2.13 per share. The Company
recognized non-cash consulting expense related to (i) the grant date fair value
of the Common Stock of $1,420 and (ii) the intrinsic value of the stock options
of $355. Messrs. Moore and Magiera resigned from the Company's Board of
Directors effective as of the date of the agreement.
OTHER RELATED PARTY TRANSACTIONS
The Company paid approximately $865 in legal fees in 1997 to a law firm
having a senior partner who is also a current director of the Company.
6. STOCK OPTIONS AND WARRANTS
Under the terms of the Company's stock option agreements, options have a
maximum term of ten years from the date of the grant. The options vesting
period varies from full vesting upon issuance of options to one forty eighth
per month to the end of the option term. A summary of the Company's stock
option activity is as follows:
F-19
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
6. STOCK OPTIONS AND WARRANTS--(CONTINUED)
<TABLE>
<CAPTION>
1995 1996 1997
------------------------- ------------------------ -----------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
------------ ---------- ----------- ---------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning
of year ............... 605,000 $ 2.13 1,565,000 $ 2.03 3,625,000 $ 2.31
Granted ................ 960,000 1.96 2,060,000 2.52 3,670,000 3.15
Exercised .............. -- -- -- -- -- --
Cancelled .............. -- -- -- -- -- --
------- ------- --------- ------- --------- -------
Outstanding at
end of year ........... 1,565,000 $ 2.03 3,625,000 $ 2.31 7,295,000 $ 2.73
========= ======= ========= ======= ========= =======
Options exercisable
at year-end ........... 1,250,350 $ 2.57 2,754,734 $ 2.54 4,970,365 $ 2.50
========= ======= ========= ======= ========= =======
</TABLE>
The following table summarizes information about stock options outstanding
at December 31, 1997:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
---------------------------------------- --------------------------------------------
WEIGHTED
WEIGHTED AVERAGE WEIGHTED
AVERAGE REMAINING AVERAGE
EXERCISE NUMBER EXERCISE CONTRACTUAL NUMBER EXERCISE EXERCISE
PRICE OUTSTANDING PRICE LIFE EXERCISABLE PRICE PRICE
- ---------------- ------------- --------- ------------ ------------- ---------- ---------------
<S> <C> <C> <C> <C> <C> <C>
$ .35 100,000 $ .35 7 100,000 $ .35 $ .35
1.83 to 1.96 1,110,000 1.96 8 1,063,194 1.96 1.83 to 1.96
2.00 to 2.42 3,130,000 2.23 9 1,801,736 2.24 2.00 to 2.42
2.50 to 2.81 1,655,000 2.70 8 1,511,917 2.71 2.50 to 2.81
4.00 to 4.40 1,100,000 4.36 10 493,518 4.32 4.00 to 4.40
6.00 to 8.00 200,000 7.00 10 -- -- 6.00 to 8.00
--------- ---------
7,295,000 4,970,365
========= =========
</TABLE>
Included in the preceding table are 1,350,000 stock options, of which
783,333 are exercisable at December 31, 1997, with an exercise price of $2.13
and a weighted average remaining contractual life of 10 years. The exercise
price of such stock options was less than the grant date fair value of the
underlying Common Stock.
During 1997 the Company granted two officers 2,650,000 stock options that
vest over a two year period. The exercise price of such grants was equal to the
grant date fair market value of the underlying Common Stock, except for 850,000
options with an exercise price of $2.13. The Company recognized non-cash
compensation expense of $527 related to the 850,000 options. The terms of
1,000,000 stock options granted during 1996 were modified during 1997 to
provide for immediate vesting.
Including the Initial and Note Warrants described in Capitalization above,
the following is a summary of warrants granted by the Company:
F-20
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
6. STOCK OPTIONS AND WARRANTS--(CONTINUED)
<TABLE>
<CAPTION>
1995 1996 1997
----------------------- ---------------------- ------------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
---------- ---------- --------- ---------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning
of year ........................... 75,000 $ 1.25 680,171 $ 2.97 680,171 $ 2.97
Granted ............................ 605,171 3.18 -- -- 7,715,000 4.35
Exercised .......................... -- -- -- -- -- --
Cancelled .......................... -- -- -- -- -- --
------- ------- ------- ------ --------- -------
Outstanding at end of year ......... 680,171 $ 2.97 680,171 $ 2.97 8,395,171 $ 4.24
======= ======= ======= ====== ========= =======
Options exercisable at
year-end .......................... 680,171 $ 2.97 680,171 $ 2.97 895,171 $ 2.80
======= ======= ======= ====== ========= =======
</TABLE>
These warrants resulted from the Company's financing activities from 1994
to 1997. The weighted average grant date fair value of warrants granted during
1997 was $3.52.
7. COMMITMENTS AND CONTINGENCIES
The Company entered into an operating agreement in 1993 with Metro S.A. to
install and operate the Company's optical fiber telecommunication network in
the tunnels, conduits and stations of lines 1 and 2 of the Santiago subway
system. The Company has given Metro S.A. a $50 performance bond relating to
these leases. The monthly lease rental is equivalent to 15% of the net monthly
invoicing of the company for services rendered in the metropolitan region of
Chile, subject to minimum amounts. The lease expires in the year 2003. Under
the agreement, the Company is obligated to provide certain telecommunications
services to Metro, S.A.
The following summarizes future minimum payments under non-cancelable
operating lease agreements at December 31, 1997:
<TABLE>
<S> <C>
1998 .............. $1,001
1999 .............. 920
2000 .............. 1,007
2001 .............. 1,101
2002-2003 ......... 2,154
------
$6,183
======
</TABLE>
Rental expense under operating leases was $255, $508 and $961 for the
years ended December 31, 1995, 1996 and 1997, respectively.
In September 1997, the Company entered into an employment and severance
agreement (the "Northland Agreement") with Patricio E. Northland, President,
Chief Executive Officer and Chairman of the Board of Directors of the Company,
which replaced his former employment agreement with the Company. The Northland
Agreement has a term of three years unless terminated earlier for cause, death
or disability, and provides for an initial annual base salary of $350,000,
subject to an increase of $50,000 in each of the second and third year of the
agreement. In addition, Mr. Northland was granted
F-21
<PAGE>
INTERAMERICAS COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(THOUSANDS OF US DOLLARS, EXCEPT SHARE DATA)
7. COMMITMENTS AND CONTINGENCIES--(CONTINUED)
non-qualified stock options to purchase 300,000 shares of ICCA's Common Stock
in the following manner: 100,000 shares which vest on the date of employment at
an exercise price of $4.00 per share; 100,000 shares which vest one year
thereafter at an exercise price of $6.00 per share; and 100,000 shares which
vest two years after the date of employment at an exercise price of $8.00 per
share. In consideration of Mr. Northland's agreement to terminate his former
employment agreement with the Company, which would have provided for a
substantial bonus to Mr. Northland upon consummation of the Offering, the
Company agreed to pay Mr. Northland a performance bonus of $250,000 and vest
all of his existing options to acquire 1,000,000 shares of Common Stock granted
under his prior employment agreement. As a result of this transaction, the
Company recognized compensation expense of $250 related to the performance
bonus. The strike price of the vested options was equivalent to the fair value
of the underlying Common Stock on the date of the Northland Agreement.
During May 1997, the Company entered into an employment and severance
agreement (the "Geib Agreement") with Douglas G. Geib II, Chief Financial
Officer of ICCA. The Geib Agreement has a term of three years unless terminated
earlier for cause, death or disability, and provides for an annual salary of
$250,000. In addition to the base salary, the Geib Agreement provides for a
primary performance award based upon business criteria which is designed to
enhance shareholder value during each year up to a maximum of 100 percent of
the base salary payable thereunder. Mr. Geib was also granted non-qualified
stock options to purchase 500,000 shares of ICCA's Common Stock at an exercise
price of $2.42 per share. One-third of such options became exercisable on date
of employment, and the remainder vest in equal annual installments over the
first two years of Mr. Geib's three-year employment period.
During October 1997, the Company entered into an agreement with Mr. Ivan
Van de Wyngard (the "Van de Wyngard Agreement") for the performance of certain
management, consulting and advisory services to the Company. Under the Van de
Wyngard Agreement, Mr. Van de Wyngard will receive a monthly fee of $7,500 as
compensation for his services. The Van de Wyngard Agreement has a term of one
year and may be extended upon mutual agreement between the parties.
F-22
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders of FirstCom Long Distance S.A.:
We have audited the accompanying balance sheets of FirstCom Long Distance
S.A. (the "Company") as of December 31, 1996 and 1997, and the related
statements of operations and cash flows for each of the two years ended
December 31, 1997, all expressed in thousands of constant Chilean pesos. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We have conducted our audits in accordance with generally accepted
auditing standards in Chile, which are substantially the same as those followed
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
presentation of the financial statements. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of FirstCom Long Distance S.A.
at December 31, 1996 and 1997, and the results of their operations and cash
flows for each of the two years ended December 31, 1997, in conformity with
generally accepted accounting principles in Chile.
The accompanying financial statements have been prepared assuming that
FirstCom Long Distance S.A. continues as a going concern. FirstCom Long
Distance S.A. has shown recurring operating losses and shows negative working
capital and shareholders' equity that raise substantial doubt about its ability
to continue as a going concern. Management's actions regarding these situations
are described in Note 20. The financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
Accounting principles generally accepted in Chile vary in certain
significant respects from accounting principles generally accepted in the
United States of America. The application of the latter would have affected the
determination of net income for each of the two years in the period ended
December 31, 1997 and the determination of shareholders' equity as of December
31, 1996 and 1997 to the extent summarized in Note 30 to the financial
statements.
JUAN PABLO HESS LANGTON CLARKE
Santiago, February 25, 1998
(except for Note 30, for which
the date is June 2, 1998)
F-23
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
BALANCE SHEETS
RESTATED FOR GENERAL PRICE-LEVEL CHANGES AND EXPRESSED
IN THOUSANDS OF CONSTANT CHILEAN PESOS (THCH$) AND THOUSANDS
OF US DOLLARS (THUS$) (NOTES 2(C) & 2(L))
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------------------------
1996 1997 1997
THCH$ THCH$ THUS$
--------------- --------------- ------------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash ..................................................... 25,255 66,485 151
Time deposits ............................................ -- -- --
Trade accounts receivable, net (Note 5) .................. 1,077,002 898,049 2,045
Notes receivable ......................................... 76,800 47,602 108
Sundry accounts receivable (Note 6) ...................... 20,569 14,362 33
Inventories .............................................. 5,653 5,730 13
Taxes recoverable (Note 7) ............................... 216,514 166,020 378
Prepaid expenses (Note 8) ................................ 143,025 6,651 15
Other .................................................... 677 327 1
--------- ------- -----
Total current assets ................................... 1,565,495 1,205,226 2,744
--------- --------- -----
FIXED ASSETS: (Note 9)
Land ..................................................... 33,094 33,094 75
Machinery & equipment .................................... 1,640,497 1,626,421 3,703
Other fixed assets ....................................... 647,484 262,052 597
Accumulated depreciation ................................. (405,093) (504,444) (1,148)
--------- --------- ------
Total fixed assets ..................................... 1,915,982 1,417,123 3,227
--------- --------- ------
OTHER ASSETS: (Note 10)
Intangibles .............................................. 4,263 4,235 10
Other .................................................... 32,111 1,756 4
--------- --------- ------
Total other assets ..................................... 36,374 5,991 14
--------- --------- ------
Total assets .......................................... 3,517,851 2,628,340 5,985
========= ========= ======
LIABILITIES AND SHAREHOLDERS' EQUITY:
Short-term bank liabilities (Note 11) .................... 3,565,210 5,010 11
Current portion of lease obligations (Note 12) ........... 104,209 107,301 244
Accounts payable (Note 13) ............................... 761,985 902,310 2,055
Notes payable (Note 14) .................................. 290,667 312,512 712
Sundry creditors ......................................... 2,823 8,024 18
Amounts payable to related companies (Note 15) ........... 178,145 553,634 1,261
Accrued liabilities (Note 16) ............................ 201,457 373,019 849
Withholding taxes (Note 17) .............................. 40,703 36,850 84
Other (Note 18) .......................................... -- 14,238 32
--------- --------- ------
Total current liabilities .............................. 5,145,199 2,312,898 5,266
--------- --------- ------
LONG-TERM LIABILITIES:
Long-term portion of lease obligations (Note 12) ......... 75,067 18,227 42
Notes payable (Note 14) .................................. 261,456 70,146 159
Amounts payable to related companies (Note 15) ........... 2,474,768 -- --
Other (Note 18) .......................................... 37,579 8,313 19
--------- --------- ------
Total long-term liabilities ............................ 2,848,870 96,686 220
--------- --------- ------
SHAREHOLDERS' EQUITY: (Note 20)
Paid-in capital .......................................... 808,442 6,887,013 15,682
Accumulated losses ....................................... (3,684,305) (5,284,660) (12,033)
Loss for the year ........................................ (1,600,355) (1,383,597) (3,150)
---------- ---------- -------
Total shareholders' equity ............................. (4,476,218) 218,756 499
---------- ---------- -------
Total liabilities & shareholders' equity .............. 3,517,851 2,628,340 5,985
========== ========== =======
</TABLE>
The accompanying notes 1 to 30 form an integral part of these financial
statements
F-24
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
STATEMENTS OF OPERATIONS
RESTATED FOR GENERAL PRICE-LEVEL CHANGES AND EXPRESSED
IN THOUSANDS OF CONSTANT CHILEAN PESOS (THCH$) AND THOUSANDS
OF US DOLLARS (THUS$) (NOTES 2(C) & 2(L))
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
1996 1997 1997
THCH$ THCH$ THUS$
--------------- --------------- ------------
(UNAUDITED)
<S> <C> <C> <C>
OPERATING RESULTS:
Operating revenues ................................ 3,590,628 4,199,618 9,562
Operating expenses excluding Depreciation ......... (2,135,179) (3,096,099) (7,050)
Operating depreciation ............................ (201,148) (127,945) (291)
---------- ---------- ------
Operating margin .................................. 1,254,301 975,574 2,221
Administrative and selling expenses excluding
depreciation .................................... (2,315,668) (1,858,229) (4,231)
General and administrative depreciation ........... (36,197) (83,510) (190)
---------- ---------- ------
Operating loss ................................... (1,097,564) (966,165) (2,200)
NON-OPERATING RESULTS:
Financial income .................................. 4,219 3,517 8
Other non-operating income ........................ -- 29,542 67
Financial expenses ................................ (624,182) (172,052) (392)
Other non-operating expenses ...................... (114,537) (352,135) (802)
Price-level restatement (Note 4) .................. 231,709 73,696 168
---------- ---------- ------
Non-operating income ............................. (502,791) (417,432) (951)
---------- ---------- ------
Loss before income taxes .......................... (1,600,355) (1,383,597) (3,151)
Income taxes ...................................... -- --
---------- ----------
Net loss ......................................... (1,600,355) (1,383,597) (3,151)
========== ========== ======
</TABLE>
The accompanying notes 1 to 30 form an integral part of these financial
statements
F-25
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
STATEMENTS OF CASH FLOWS RESTATED FOR GENERAL PRICE-LEVEL CHANGES AND EXPRESSED
IN THOUSANDS OF CONSTANT CHILEAN PESOS (THCH$)
AND THOUSANDS OF US DOLLARS (THUS$) (NOTES 2(C) & 2(L))
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
1996 1997 1997
THCH$ THCH$ THUS$
--------------- --------------- -------------
(UNAUDITED)
<S> <C> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES:
Net loss ................................................... (1,600,355) (1,383,597) (3,151)
ITEMS NOT AFFECTING CASH:
Loss on sale of fixed assets ............................... -- 70,275 160
Depreciation ............................................... 237,346 211,455 481
Write-offs and accrued liabilities ......................... 575,605 734,907 1,673
Net price-level restatement ................................ (231,709) (73,696) (168)
CHANGES IN ASSETS AFFECTING CASH FLOW:
(Increase) decrease in accounts receivable ................. (1,137,354) (172,919) (394)
(Increase) decrease in inventories ......................... (5,246) (15) --
(Increase) decrease in others assets ....................... -- 175,590 400
CHANGE IN LIABILITIES AFFECTING CASH FLOW:
Increase (decrease) in accounts payable relating to
operating results ........................................ 476,511 275,683 628
Net increase (decrease) in income taxes payable ............ 3,425 (3,144) (7)
Increase (decrease) in interest payable .................... -- 28,063 64
Net increase (decrease) in VAT and other similar payables 17,612 -- --
---------- ---------- ------
Net cash flow (used) provided by operating Activities ..... (1,664,165) (137,398) (314)
CASH FLOW FROM FINANCING ACTIVITIES:
Borrowings from banks and others ........................... 198,539 28,525 65
Borrowings from related parties ............................ -- 1,003,160 2,284
Payments on borrowings from banks and other ................ -- (23,243) (53)
Payments on borrowings from related parties ................ -- (471,746) (1,074)
Other financing activities ................................. 1,816,433 -- --
---------- ---------- ------
Net cash flow provided by financing ....................... 2,014,972 536,696 1,222
Activities ...............................................
CASH FLOW FROM INVESTING ACTIVITIES:
Proceeds from the sale fixed assets ........................ -- 76,634 175
Fixed assets acquired ...................................... (404,428) (431,271) (982)
---------- ---------- ------
Net cash flow used by investing activities ................. (404,428) (354,637) (807)
---------- ---------- ------
Total net (decrease) increase in cash and cash ............ (53,621) 44,661 101
Equivalents ..............................................
EFFECT OF INFLATION ON CASH AND CASH
EQUIVALENTS ............................................... 2,260 (3,431) (8)
---------- ---------- ------
NET CHANGE IN CASH AND CASH EQUIVALENTS ..................... (51,361) 41,230 93
---------- ---------- ------
CASH AND CASH EQUIVALENTS-- BEGINNING OF
YEAR ...................................................... 76,616 25,255 58
---------- ---------- ------
CASH AND CASH EQUIVALENTS--END OF YEAR ...................... 25,255 66,485 151
========== ========== ======
</TABLE>
The accompanying notes 1 to 30 form an integral part of these financial
statements
F-26
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS
RESTATED FOR GENERAL PRICE-LEVEL CHANGES AND EXPRESSED IN THOUSANDS OF CONSTANT
CHILEAN PESOS (THCH$) AND THOUSANDS OF US DOLLARS (THUS$)
1. NATURE OF OPERATIONS AND BACKGROUND OF THE COMPANY:
Name and registration in the Securities Register:
FirstCom Long Distance S.A. (the "Company") was originally incorporated
under the name of TDI S.A. under public deed dated March 3, 1992.
On May 19, 1994, the minutes of the first extraordinary shareholders
meeting held on May 5, 1994 were recorded under public deed. This meeting
approved the change of the Company's name to Telecomunicaciones Digitales
Internacionales S.A. and a capital increase, whereby Grupo Iusacell S.A. de
C.V. ("Iusacell") purchased 51% of the share capital.
On August 1, 1994, the minutes of the second extraordinary shareholders
meeting held on July 28, 1994 were recorded under public deed. This meeting
approved the change of the Company's name to Iusatel S.A., the expansion of the
Company's objectives and the related change in its bylaws. From that date, the
Company began the final phase of its start-up, principally characterized by
investment in its infrastructure.
Subsequently on December 30, 1997, the minutes of an extraordinary
shareholders meeting held on December 29, 1997 were recorded under public deed.
This meeting approved the change of the Company's name to FirstCom Long
Distance S.A.
The principle objective of the Company is to engage in business within the
telecommunications industry.
The Company is registered under No. 494 in the Securities Register and is
therefore subject to the regulatory authority of the Chilean Superintendency of
Securities and Insurance (the "Superintendency").
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
(a) Presentation:
The financial statements have been prepared in accordance with generally
accepted accounting principles in Chile ("Chilean GAAP") and the regulations
established by the Superintendency. The Company is also subject to specific
provisions contained in Corporations Law 18,046 and its related regulations.
(b) Comparative financial statements:
For comparative purposes, the financial statements and the amounts
disclosed in the related notes for the year ended December 31, 1996 have been
restated in terms of Chilean pesos of December 31, 1997 purchasing power. In
accordance with Chilean regulations and accounting practices, the restatement
was calculated based on the Official Consumer Price Index of the National
Institute of Statistics, which was 6.6% and 6.3% for the years ended
December31, 1996 and 1997, respectively. The
F-27
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:--(CONTINUED)
(b) Comparative financial statements:--(Continued)
index is based on the "prior month rule", pursuant to which the inflation
adjustments are based on the Consumer Price Index at the close of the month
preceding the close of the respective period or transaction. This index is
considered by the business community, the accounting profession and the Chilean
government to be the index which most closely complies with the technical
requirement to reflect the variation in the general level of prices in the
country and, consequently, is widely used for financial reporting purposes in
Chile.
(c) Price-level restatement:
The financial statements, which are expressed in Chilean pesos, have been
restated to reflect the effects of variations in the purchasing power of the
local currency during each year. For this purpose, and in conformity with
current Chilean regulations, non-monetary assets and liabilities, equity
accounts and income and expense accounts have been restated each year in terms
of year-end constant pesos. The resulting net charge or credit to income arises
as a result of the gain or loss in purchasing power from the holding of
monetary assets and liabilities exposed to the effects of inflation.
The above-mentioned price-level restatements do not purport to present
appraised or replacement values and are only intended to restate all
non-monetary financial statement components in terms of local currency of
similar purchasing power and to include in the net result for each year the
gain or loss in purchasing power arising from the holding of monetary assets
and liabilities exposed to the effects of inflation.
Certain assets and liabilities are denominated in U.F. units (Unidades de
Fomento). A U.F. is a Chilean inflation-indexed peso denominated monetary unit
which is set daily in advance based on changes in the Consumer Price Index. The
adjustments to the closing balance of U.F.-denominated assets and liabilities
are included in the Price-level restatement account in the Statement of Income.
Each U.F. was equivalent to Ch$ 13,280.43 and Ch$ 14,096.93 at December 31,
1996 and 1997, respectively.
(d) Assets and liabilities in US dollars:
Balances in foreign currency included in the balance sheet have been
translated into Chilean pesos at the "Observed Exchange Rate" determined by the
Central Bank of Chile in effect at each year end using the following exchange
rates:
<TABLE>
<CAPTION>
AS OF AS OF
DECEMBER 31, 1996 DECEMBER 31, 1997
------------------- ------------------
<S> <C> <C>
US Dollar ("observed" rate) ......... 424.87 439.18
</TABLE>
(e) Allowance for doubtful accounts and long-distance revenue recognition
criteria:
(i) Revenue for all services is recognized in the period during which the
services are provided. Billing of contracted clients is performed by the
Company and billing for dial-up clients is performed by the respective local
carrier.
Revenues recorded relate to (i) the Company's switch and (ii) billing
reports received from local carriers. The information from (i) and (ii),
whether for contracted or dial-up services, is valued at the corresponding
tariff and the resultant revenues are recognized.
F-28
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:--(CONTINUED)
(e) Allowance for doubtful accounts and long-distance revenue recognition
criteria:--(Continued)
(ii) The allowance for doubtful accounts is calculated based upon an aging
of account receivable balances using historical rates of collection by type of
account balance detailed as follows:
<TABLE>
<CAPTION>
DAYS
RECEIVABLES DIAL-UP % CONTRACTED % DIAL-UP % CONTRACTED %
AGED 1996 1996 1997 1997
- ------------- ----------- -------------- ----------- -------------
<S> <C> <C> <C> <C>
271+ 40 40 100 100
181-270 20 20 100 95
151-180 10 10 95 90
121-150 8 8 90 80
91-120 5 5 85 70
61-90 4 4 20 6
31-60 3 3 10 4
0-30 2 2 5 2
</TABLE>
No provision has been recorded against un-billed traffic.
Given the significant collection risk associated with the "audio-text"
(data transmission) receivables, the Company has recorded a 100% provision
against the related receivable balance in the amount of ThCh$317,456. As of
December 31, 1996, these services were no longer being provided by the Company.
(f) Fixed assets:
Fixed assets are shown at restated acquisition or import cost, including,
in the latter case, "deferred customs duties". Assets received under lease
contracts are shown at the present value of the contract.
Depreciation is calculated using the straight-line method on the restated
value of the assets over the related useful lives. Depreciation expense
amounted to ThCh$ 237,346 and ThCh$211,455 for the years ended December 31,
1996 and 1997, respectively.
(g) Staff severance indemnities:
The Company has no obligation for the payment of staff severance
indemnities as employee severance benefits are neither legally required nor
included under the terms and conditions of employee contracts.
(h) Staff vacations:
The Company has recorded the cost of staff vacations on an accrued basis
as the vacations are earned by the employees in accordance with Technical
Bulletins Nos. 47 and 48 of the Chilean College of Accountants A.G.
F-29
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:--(CONTINUED)
(i) Income tax:
The Company has made no provision for first category income tax as it has
incurred tax losses. The Company has provided for Article 21 Tax under the
Income Tax Law.
(j) Statement of cash flows:
Cash flows generated from operating activities include all core business
related cash flows, interest paid, investment income and all other cash flows
not included in investing or financing activities.
(k) Reclassifications:
Certain reclassifications have been made to the December 31, 1996 figures
to enhance the comparability of the financial statements as of December 31,
1997.
(l) Convenience translation to US dollars (unaudited):
The Company maintains its accounting records and prepares its financial
statements in Chilean pesos. The United States dollar amounts disclosed in the
accompanying financial statements as of December 31, 1996 and 1997 are
presented solely for the convenience of the reader at the December 31, 1997
exchange rate of Ch$ 439.18 per US$ 1. This translation should not be construed
as representing that the Chilean peso amounts actually represent or have been,
or could be, converted into United States dollars.
3. ACCOUNTING CHANGES:
Effective January 1, 1996, Technical Bulletin No. 50 of the Chilean
College of Accountants A.G. required the presentation of a statement of cash
flows instead of the statement of changes in financial position. Beginning
January 1, 1997 the S.V.S. instructed companies to eliminate the statement of
changes in financial position, and required the presentation of the cash flows
statement under the direct method for fiscal years 1996 and 1997. Therefore,
the financial statements as of December 31, 1997, include the presentation of
cash flows for the two years in the period ended December 31, 1997.
F-30
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
4. PRICE-LEVEL RESTATEMENT:
Price-level restatement is summarized as follows:
<TABLE>
<CAPTION>
(CHARGE)/CREDIT TO INCOME
YEAR ENDED DECEMBER 31,
1996 1997
THCH$ THCH$
------------ ------------
<S> <C> <C>
Current assets ...................................... 6,470 560
Fixed assets ........................................ 104,327 96,856
Other assets ........................................ 255 187
Non-monetary liabilities ............................ (95,634) --
Shareholders' equity ................................ 178,056 (73,367)
------- -------
Balance of price-level restatements account ......... 193,474 24,236
Income statement accounts (net) ..................... 38,235 49,460
------- -------
Price-level restatement ............................. 231,709 73,696
======= =======
</TABLE>
5. TRADE ACCOUNTS RECEIVABLE:
Net trade accounts receivable are summarized as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
---------------------------
1996 1997
THCH$ THCH$
------------ ------------
<S> <C> <C>
Billed accounts receivable ...................................... 952,510 1,261,948
Accrued accounts receivable ..................................... 516,081 416,594
Accounts receivable under Reciprocal carrier agreements ......... 117,945 --
------- ---------
Total trade receivables ......................................... 1,586,536 1,678,542
Allowance for doubtful accounts ................................. (509,534) (780,493)
--------- ---------
Total ......................................................... 1,077,002 898,049
========= =========
</TABLE>
6. SUNDRY ACCOUNTS RECEIVABLE:
Sundry accounts receivable are summarized as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
--------------------
1996 1997
THCH$ THCH$
--------- --------
<S> <C> <C>
Current accounts .............. 5,854 48
Advances to suppliers ......... 3,064 8,352
Other ......................... 11,651 5,962
------ -----
Totals ...................... 20,569 14,362
====== ======
</TABLE>
F-31
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
7. TAXES RECOVERABLE:
Taxes recoverable are summarized as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
------------------------
1996 1997
THCH$ THCH$
----------- ----------
<S> <C> <C>
VAT fiscal credit ................ 214,316 164,975
Training expense credits ......... 5,623 1,255
(-) Income taxes payable ......... (3,425) (210)
------- -------
Total .......................... 216,514 166,020
======= =======
</TABLE>
8. PREPAID EXPENSES:
Prepaid expenses are summarized as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
---------------------
1996 1997
THCH$ THCH$
---------- --------
<S> <C> <C>
Insurance ................... 4,761 3,012
Prepaid advertising ......... 106,501 1,557
Prepaid taxes ............... -- 1,806
Other ....................... 9,866 276
Commissions ................. 21,897 --
------- -----
Total ..................... 143,025 6,651
======= =====
</TABLE>
F-32
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
9. FIXED ASSETS:
Fixed assets are summarized as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
---------------------------
1996 1997
THCH$ THCH$
------------ ------------
<S> <C> <C>
Land: ............................................ 33,094 33,094
------ ------
Machinery & equipment:
Earth station ................................... 723,904 724,762
Miscellaneous machinery & equipment ............. 13,319 13,320
International switch ............................ 432,606 113,231
National Switch ................................. -- 349,055
Network ......................................... 9,766 9,765
Internal communications equipment ............... 7,215 7,216
Call-back switch ................................ 54,653 --
Furniture & installations ....................... 191,916 165,536
Vehicles ........................................ 6,446 6,446
Office equipment ................................ 181,323 195,328
Customer equipment .............................. 19,349 33,971
Other ........................................... -- 7,791
------- -------
Subtotal ....................................... 1,640,497 1,626,421
--------- ---------
Other fixed assets:
Leased assets ................................... 332,653 249,920
Telephone trunk lines ........................... 12,132 12,132
Imported equipment in transit ................... 299,794 --
Other ........................................... 2,905 --
--------- ---------
Subtotal ....................................... 647,484 262,052
--------- ---------
Total fixed assets (gross) ..................... 2,321,075 1,921,567
--------- ---------
Less:
Accumulated depreciation for the period ......... (405,093) (504,444)
--------- ---------
Total fixed assets (net) ....................... 1,915,982 1,417,123
========= =========
</TABLE>
10. OTHER ASSETS:
Other assets are summarized as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
--------------------
1996 1997
THCH$ THCH$
--------- --------
<S> <C> <C>
Telephone lines ..................... 4,263 4,235
Long-term deferred interest ......... 8,078 1,748
Long-term time deposits ............. 23,088 --
Other ............................... 945 8
------ -----
Total ............................. 36,374 5,991
====== =====
</TABLE>
F-33
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
11. SHORT-TERM BANK LIABILITIES:
Short-term bank liabilities are summarized as follows:
<TABLE>
<CAPTION>
MONTHLY
INTEREST ACCRUED TOTAL
RATE AMOUNT AMOUNT INTEREST 1996
BANK (%) IN U.F. IN THCH$ THCH$ THCH$
- -------------------------- ---------- --------- ----------- ---------- ------------
<S> <C> <C> <C> <C> <C>
Sud Americano ......... 1.49 249,361 3,520,253 13,067 3,533,320
Sud Americano ......... 1.49 -- 31,890 -- 31,890
------- --------- ------ ---------
Total ............... 249,361 3,552,143 13,067 3,565,210
======= ========= ====== =========
</TABLE>
<TABLE>
<CAPTION>
MONTHLY
INTEREST ACCRUED TOTAL
RATE AMOUNT AMOUNT INTEREST 1997
BANK (%) IN U.F. IN THCH$ THCH$ THCH$
- -------------------------- ---------- --------- ---------- ---------- ------
<S> <C> <C> <C> <C> <C>
Sud Americano ......... 0.84 -- 4,946 64 5,010
----- -- -----
Total ............... 4,946 64 5,010
===== == =====
</TABLE>
12. LEASING OBLIGATIONS:
At December 31, 1996 and 1997, the Company had fixed asset lease contracts
outstanding with financial institutions and others, whose installments have the
following maturities:
<TABLE>
<CAPTION>
AT DECEMBER 31,
----------------------
1996 1997
THCH$ THCH$
--------- ----------
<S> <C> <C>
Short term ......... 104,209 107,301
Long term .......... 75,067 18,227
------- -------
Total ............ 179,276 125,528
======= =======
</TABLE>
13. ACCOUNTS PAYABLE:
Accounts payable are summarized as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
----------------------
1996 1997
THCH$ THCH$
--------- ----------
<S> <C> <C>
Domestic suppliers ............... 584,728 851,680
Sundry accounts .................. 11,212 6,084
------- -------
Total domestic suppliers ......... 595,940 857,764
Foreign suppliers ................ 166,045 15,281
Correspondants ................... -- 29,265
------- -------
Total accounts payable ........... 761,985 902,310
======= =======
</TABLE>
F-34
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
14. NOTES PAYABLE:
Notes payable are summarized as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
----------------------
1996 1997
THCH$ THCH$
--------- ----------
<S> <C> <C>
Short-term ......... 290,667 312,512
Long-term .......... 261,456 70,146
======= =======
Total ............ 552,123 382,658
======= =======
</TABLE>
15. AMOUNTS PAYABLE TO RELATED COMPANIES:
(a) Short-term:
Short-term amounts payable to related companies at December 31, 1996
include amounts payable of ThCh$ 178,145, to Satelitron S.A., Mexico, a company
related to Iusacell, for satellite space rentals. At December 31, 1997
Satelitron S.A., Mexico was no longer a related party, and such amounts payable
to this entity are included in notes payable.
At December 31, 1997 the Company owed ThCh$112,986 to Inversiones Druma
S.A. related to financing provided to the Company.
At December 31, 1997 the Company owed Hewster Chile S.A., a new
shareholder of the Company, ThCh$440,648, related to a December 1997 loan and
certain telecommunication services provided to the Company.
(b) Long-term:
Long-term amounts payable to related parties represent capital
contributions of ThCh$ 2,474,768, at December 31, 1996, from Iusacell S.A.
These capital contributions were legally formalized in January of 1997 upon
approval by the Superintendency.
16. ACCRUED LIABILITIES:
Accrued liabilities are summarized as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
---------------------
1996 1997
THCH$ THCH$
--------- ---------
<S> <C> <C>
Vacations (Note 2(g)) ......... 43,560 24,879
Pending Invoices .............. 89,854 278,752
Other ......................... 68,043 69,388
------ -------
Total ....................... 201,457 373,019
======= =======
</TABLE>
17. WITHHOLDING TAXES:
Withholding taxes relate to remuneration, taxes and social security
deductions for the month of December, amounting to ThCh$ 40,703 and
ThCh$ 36,850 at December 31, 1996 and 1997, respectively.
F-35
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
18. OTHER LONG-TERM LIABILITIES:
As of December 31, 1996 and 1997, this account balance included deferred
customs duties, in accordance with Law 18,634, as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
---------------------
1996 1997
THCH$ THCH$
--------- ---------
<S> <C> <C>
Short-term ............................ -- 14,238
Long-term ............................. 37,579 8,313
====== ======
Total deferred customs duties ......... 37,579 22,551
====== ======
</TABLE>
19. INCOME TAXES:
No provision was made for first category income tax at December 31, 1996
and 1997, as there were tax losses amounting to approximately Ch$ 5,024 million
and Ch$ 5,979 million, respectively. The amounts provided for at December 31,
1996 and 1997 of ThCh$3,425 and ThCh$210, respectively, relate to taxes due on
certain non-deductible (as defined by Article 21 of the Income Tax Law)
expenses incurred by the Company.
20. SHAREHOLDERS' EQUITY:
(a) The movements in shareholders' equity for the years ended December 31,
1996 and 1997 are summarized as follows:
<TABLE>
<CAPTION>
FULLY PAID FULLY PAID
AND AND
OUTSTANDING OUTSTANDING NET LOSS
SERIES A SERIES B PAID-IN ACCUMULATED FOR THE
COMMON COMMON CAPITAL DEFICIT PERIOD TOTAL
SHARES SHARES THCH$ THCH$ THCH$ THCH$
------------- ------------- ------------ --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Balances as of December 31,
1995 .............................. 22,350 23,263 713,442 (830,882) (2,420,478) (2,537,918)
Transfer of previous year's
results ........................... -- -- -- (2,420,478) 2,420,478 --
Equity price-level restatement ..... -- -- 47,087 (224,590) -- (167,603)
Loss for the year .................. -- -- -- -- (1,505,508) (1,505,508)
------ ------ ------- ---------- ---------- ----------
Balances at December 31, 1996 22,350 23,263 760,529 (3,465,950) (1,505,508) (4,210,929)
------ ------ ------- ---------- ---------- ----------
Balance at December 31, 1996
restated in constant Chilean
pesos of December 31, 1997 ........ 808,442 (3,684,305) (1,600,355) (4,476,218)
------- ---------- ---------- ----------
Transfer of previous year's
results ........................... -- -- -- (1,505,508) 1,505,508 --
Issuance of new class of shares 574,014,799 (23,263)
Increase in capital ................ 5,739,915 -- -- 5,739,915
--------- ---------- ---------- ----------
Equity price-level restatement ..... 386,569 (313,202) -- 73,367
Loss for the year .................. -- -- (1,383,597) (1,383,597)
--------- ---------- ---------- ----------
Balances at December 31, 1997 574,037,149 -- 6,887,013 (5,284,660) (1,383,597) 218,756
=========== ======= ========= ========== ========== ==========
</TABLE>
F-36
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
20. SHAREHOLDERS' EQUITY:--(CONTINUED)
(b) Shareholders' Equity:
At the extraordinary shareholder's meeting on January 24, 1997 the
following decisions were made:
1 The increase in common stock and changes to the Company's by-laws, made
pursuant to the December 4, 1995 extraordinary meeting of the Company's
shareholders were kept in effect
2 Series A and B common stock , which comprised the Company's 45,613 common
shares outstanding, were rescinded and a sole class of common stock was
created.
3 The Company's capital which was Ch$713,441,959 at December 31, 1996,
excluded price level restatements; the Company's authorized capital was
increased to Ch$11,968,177,959, made up of 1,125,519,213 common shares of
a sole class without par value representing an increase in the number of
authorized shares of Common Stock of 1,125,473,600 new common shares
without par value.
4. At the same meeting, the Grupo Iusacell subscribed to and paid for
573,991,536 common shares making up 51% of the new common shares issued in
the following manner:
Ch$3,411,817,157 via the capitalization of amounts owed to Iusacell that
resulted from Iusacell repaying the Company's debt to Banco Sud Americano
on January 14, 1997.
Ch$2,328,098,143 via that capitalization of amounts that had been lent to
the Company by Iusacell.
With respect to the remaining 49% of the common shares, it was agreed to
leave such common shares available for sale for the next three years. The
increases of the Company's capital are subject to the approval of the
Superintendencia de Valores y Seguros.
In addition to the above share issuance that has substantially improved
liquidity, the Company has been involved in continuous efforts to formulate a
restructuring plan to improve future operations. Such efforts have resulted in
the development of a new business plan and strategy to address the Company's
current financial situation and recent financial performance.
(c) Share ownership:
<TABLE>
<CAPTION>
1996 1997
------------- -----------------
NO. NO.
TYPE OF SHAREHOLDER S/H % S/H %
- ---------------------------------------------------------------- ----- ----- ----- ---------
<S> <C> <C> <C> <C>
Holding of 10% or more ...................................... 3 100 1 99.9
Less than 10% holding but investment of U.F. 200 or
more ....................................................... -- -- --
Less than 10% holding but investment less than U.F. 200 ..... -- 1 0.1
--- -- ----
Total ....................................................... 3 100 2 100
===== === == ====
Control of the Company ...................................... 1 51 1 99.9
===== === == ====
</TABLE>
F-37
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
21. OTHER NON OPERATIONAL EXPENSES:
The components of this account was as follows:
<TABLE>
<CAPTION>
AT DECEMBER 31,
1996 1997
THCH$ THCH$
--------- ----------
<S> <C> <C>
Legal settlements ............................. 57,535 --
Write-off of switch ........................... -- 215,983
Write-off of installations .................... -- 15,920
Loss on sale of fixed asset ................... 133 70,275
Additional reserve for foreign vendor ......... 50,267 17,727
Other ......................................... 6,602 32,230
------ -------
114,537 352,135
======= =======
</TABLE>
With the objective of improving customer service, the Company decided to
upgrade its communications technology via the purchase of a new switch and will
significantly restrict the use of the switch currently in service. As a result
of this decision, the carrying amount of the switch currently in service has
been written down to its fair value, as determined by Company management based
on quoted market prices for such switch.
22. INTERMEDIATE SERVICE CONCESSION:
The Company carries out its business on the basis of Decree Law No. 188 of
the Undersecretary of Telecommunications dated December 17, 1993, whereby TDI
S.A. was granted a concession for intermediate telecommunications services.
Under public deed dated September 24, 1994, the name TDI S.A. was changed
to Telecomunicaciones Digitales Internacionales S.A. with a capital increase to
permit Iusacell to purchase a controlling interest in the Company. On August 3,
1994, the bylaws of the Company were amended and its name was changed to
Iusatel S.A.
23. DIRECTORS' REMUNERATION:
Payments made to directors for attending meetings during 1997 amounted to
Ch$4,221,000.
Mr. Rafael Cristi Diaz, named a director of the Company during January
1997, received total payments of Ch$24,856,000 of which Ch$11,901,000 pertained
to accrued service indemnities related to years of service while an employee of
the Company, relating to his termination of employment dated June 18, 1997.
No payments were made to directors for attending meetings during the years
ended December 31, 1996.
24. SANCTIONS:
Neither the Company nor any of its directors have been subject to any
sanctions by any governmental tax agency.
25. COMMON STOCK TRANSACTIONS
On January 30, 1997, Grupo Iusacell S.A. de C.V. sold and transferred all
interest in 23,263 shares of the Company's common stock to Inversiones Druma
S.A., which was represented by Mr. Hernan Streeter Rios.
F-38
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
25. COMMON STOCK TRANSACTIONS--(CONTINUED)
The purchase price of these shares of the Company's common stock was
Ch$46,040.526 per share and such purchase price will be paid in accordance with
article nine of the related stock purchase agreement which has been registered
with the Chilean consulate in Mexico City.
According to the common stock register updated through December 31, 1997,
there were the following common stock transactions:
On December 16, 1997, Inversiones y Servicios Santa Teresa Limitada, owner
of 11,625 of the Company's shares sold and transferred all interest to Grupo
Iusacell S.A. de C.V. 11,624 shares and to Gabriel Caceres Squella 1 share.
Additionally, Sergio Munoz Ramirez, owner of 10,725 of the Company's shares,
sold and transferred all interest in such shares to Grupo Iusacell S.A. de C.V.
Simultaneously, Grupo Iusacell S.A. de C.V. sold and transferred all
interest of 573,991,536 shares of the Company to Inversiones Druma S.A.
On the same date, Inversiones Druma S.A., owner of 574,014,799 shares of
the Company sold and transferred all interest to InterAmericas Communications
Corporation 573,440,762 shares and to Hewster Chile S.A. (today FirstCom
Networks S.A.) 574,037 shares.
On December 17, 1997 Grupo Iusacell S.A. de C.V. sold and transferred all
interest in 22,349 shares of the Company to InterAmericas Communications
Corporation and Gabriel Caceres Squella sold and transferred all interest in 1
share of the Company to InterAmericas Communications Corporation.
In summary, the Company's shareholders at December 31, 1997 are:
InterAmericas Communications Corporation with 573,463,112 shares (99.9%
ownership) and Hewster Chile S.A. (today FirstCom Networks S.A.) with 574,037
shares (0.1% ownership).
There were no transactions involving the Company's common stock during
1996.
26. GUARANTEES:
(a) National:
With the purpose of guaranteeing the Company's payment of amounts due
related to the Company's purchase of an advanced performance switch NS-2000
(the NS-2000 Switch), and in accordance with an amendment to the contract, if
the Company is greater than 60 days past due on any related amounts, North
Supply S.A. (the vendor) has the right to repossess the NS-2000 Switch. The
amount of such guarantee at December 31, 1997 was US$773,133.
Additionally, the amendment to the contracts stipulates that payment is
due upon acceptance of the equipment.
There were no national guarantees during 1996.
F-39
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
26. GUARANTEES:--(CONTINUED)
(b) International:
There were no international guarantees during 1997.
A Stand-by letter of credit in the amount of ThUS$ 8,000 at December 31,
1996, given by its then majority shareholder, Iusacell, in favor of:
<TABLE>
<CAPTION>
AT DECEMBER 31,
----------------
1996 1997
THUS$ THUS$
<S> <C> <C>
Banco Sud Americano (Bank of Nova Scotia N.Y.) ......... 8,504 --
Citibank N.A. (N.Y.) ................................... -- --
----- --
8,504 --
===== ==
</TABLE>
27. CONTINGENCIES AND COMMITMENTS:
At December 31, 1997 the following contingencies existed:
Mr. Claudio Sancho Caceres is demanding ThCh$4,400 for unjustified
termination of employment.
Mr Oscar Ligardi is demanding ThCh$48,000 related to employment severance
indemnities.
At December 31, 1996 the Company was unaware of any significant
contingencies or commitments affecting the financial statements
28. RELEVANT FACTS:
1. An extraordinary meeting of the board of directors held on June 27,
1996, agreed to accept the resignation of then, general manager of the
Company, Gaston Pereira, and appointed Luis Alberto Reyes as interim
general manager and Alberto Herrerias as executive director of the
Company.
2. On January 30, 1997, Inversiones Druma S.A., a company which until such
date was not a shareholder of the Company, acquired a controlling interest
in the Company's common stock.
3. During September 1997 the Company concluded the evaluation of it's
internet division which resulted in the sale of such division to
Interacces S.A. on October 6,1997. The related agreement was formally
notarized on November 18, 1997.
4. On December 16, 1997 the controlling shareholder of the Company changed
from Inversiones Druma S.A. to InterAmericas Communications Corporation.
5. On December 30, 1997 the Company's name was formally changed from
Iusatel Chile S.A. to FirstCom Long Distance S.A.
F-40
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
29. STATEMENT OF CASH FLOWS:
(a) Other sources of financing for the year ended December 31, 1996 is
summarized as follows:
<TABLE>
<CAPTION>
1996
THCH$
----------
<S> <C>
Iusacell capital contribution (Note 15(b)) ......... 1,816,433
=========
</TABLE>
(b) The following financing activities did not result in cash outflows
during the current year but commit future cash flows:
<TABLE>
<CAPTION>
1996 1997
THCH$ THCH$
--------- ----------
<S> <C> <C>
Purchase of Switch ........................... 300,415 221,820
PCS call processing platform machine ......... 54,653 --
------- -------
Total ........................................ 355,068 221,820
======= =======
</TABLE>
30. DIFFERENCES BETWEEN CHILEAN AND UNITED STATES GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES:
Chilean GAAP varies in certain important respects from the accounting
principles generally accepted in the United States ("U.S. GAAP"). Such
differences involve methods for measuring the amounts shown in the financial
statements, as well as additional disclosures required by U.S. GAAP.
(a) Differences in Measurement Methods
The principal methods applied in the preparation of the accompanying
financial statements which have resulted in amounts that differ from those that
would have otherwise been determined under U.S. GAAP are as follows:
(i) Inflation accounting:
Chilean GAAP requires that the financial statements be restated to reflect
the full effects of loss in the purchasing power of the Chilean peso on the
financial position and results of operations of reporting entities. The method,
described in Note 2(c), is based on a model which enables calculation of net
inflation gains or losses caused by monetary assets and liabilities exposed to
changes in the purchasing power of local currency. The model prescribes that
the historical cost of all non-monetary accounts be restated for general
price-level changes between the date of origin of each item and the year-end,
but allows direct utilization of latest cost values for the restatement of
inventories, as an alternative to the price-level restatement of those assets
only if the resulting variation is not material.
The inclusion of price-level adjustments in the accompanying financial
statements is considered appropriate under the prolonged inflationary
conditions affecting the Chilean economy. Accordingly, the effect of
price-level changes is not eliminated in the reconciliation to U.S. GAAP
included under paragraph (a)(vii) below.
F-41
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
30. DIFFERENCES BETWEEN CHILEAN AND UNITED STATES GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES:--(CONTINUED)
(ii) Income taxes:
The accounting treatment of income taxes under Chilean GAAP and U.S. GAAP
differs in respect to accounting for deferred income taxes. Under U.S. GAAP,
prescribed by Statement of Financial Accounting Standards ("SFAS") No. 109,
"Accounting for Income Taxes", all temporary differences arising as a result of
transactions that have different accounting and tax treatments are recognized
as deferred tax assets and liabilities as of the balance sheet date. A
valuation allowance is provided against deferred tax assets that are not
recoverable on a more-likely-than-not basis. Under Chilean GAAP, only deferred
tax assets and liabilities that are non-recurring are recognized in the
financial statements. Chilean GAAP also permits not providing for deferred
income taxes where a deferred tax asset or liability is not expected to be
realized.
The Company has deferred tax assets relating to tax loss carryforwards
amounting to ThCh$ 753,676 and ThCh$ 902,630, at December 31, 1996 and 1997,
respectively, for which the Company has recorded a full valuation allowance due
to the uncertainty of the realization of such tax loss carryforwards.
The Company's management considers that the net effect of applying SFAS
No. 109 for all periods presented in paragraph (a)(vii) below to be immaterial.
(iii) Impairment of Long-Lived Assets:
Under U.S. GAAP, SFAS No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed Of", requires that
assets to be disposed of be valued at the lower of carrying amount or fair
value less cost to sell. Furthermore, companies are required to review
long-lived assets and certain identifiable intangibles to be held and used for
impairment whenever events or changes in circumstances indicate that the
carrying amount of an asset may not be recoverable. If the sum of the expected
future cash flows (undiscounted and without interest charges) is less than the
carrying amount of the asset, an impairment loss is recognized. Otherwise, an
impairment loss is not recognized. Measurement of an impairment loss for
long-lived assets and identifiable intangibles that an entity expects to hold
and use should be based on the fair value of the asset. Under Chilean GAAP, the
impairment loss related to the Company's long-lived assets was recorded in the
period that the Company's management decided to dispose of such assets.
The effect of the application of SFAS No. 121 is presented in paragraph
(a) (vii) below
Under U.S. GAAP, such adjustments would be included in the operating costs
of the Company.
(iv) Allowance for doubtful accounts and unrealizable "audio-text" revenue
Based upon information available subsequent to the issuance of the Chilean
financial statements, the Company reduced its estimate of recoverable amounts
related to certain accounts receivable which existed as of December 31, 1996
and determined that certain revenues reorganized in 1996 related to
"audio-text" services (see Note 2(e)) were unrealizable. As a result of this
change in estimate, an additional allowance for doubtful accounts and a
reduction of revenue has been recorded for U.S. GAAP purposes. The effect of
the above adjustment is presented in paragraph (a) (vii) below.
F-42
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
30. DIFFERENCES BETWEEN CHILEAN AND UNITED STATES GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES:--(CONTINUED)
(v) Push-Down Accounting
In accordance with Staff Accounting Bulletin 54 "Pushdown Basis of
Accounting in Financial Statements of Subsidiaries", FirstCom Long Distance,
being at December 31, 1997 a wholly owned subsidiary of InterAmericas
Communications Corporation, should establish a new basis of accounting for its
assets and liabilities. The new basis of accounting should be based on the
parents accounting for the acquisition in accordance with APB 16. The only
impact resulting from InterAmericas purchasing accounting under APB 16 for its
acquisition of the Company is the push-down to the Company of the excess
purchase price which was allocated to the Company's long-distance carrier
concession.
(vi) Capital Contributions
Amounts reflected as long-term due to related parties at December 31, 1996
represents funds that were given to the Company during 1996 with the intention
of being capital contributions. However, these funds given to the Company were
not legally declared capital contributions until January 1997 and as a result
are recorded as amounts due to related parties in the accompanying December 31,
1996 Chilean GAAP balance sheet. Under U.S. GAAP, the formalization of such
contributions during January 1997 constitutes a subsequent event, the effects
of which should be reflected on the December 31, 1996 balance sheet. As a
result, for U.S. GAAP purposes, the long-term due to related parties at
December 31, 1996 has been reclassified as a capital contribution.
(vii) Effects of conforming to U.S. GAAP:
The adjustments to reported Net income required to conform with U.S. GAAP
are as follows:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
DECEMBER 31,
---------------------------------
1996 1997
THCH$ THCH$
--------------- ---------------
<S> <C> <C>
Net loss as shown in the Chilean GAAP financial statements ......... (1,600,355) (1,383,597)
Impairment of long-lived assets (paragraph a(iii)) ................. (212,418) 212,418
Allowance for doubtful accounts and unrealizable "audio-text"
revenue (paragraph a(iv)) ......................................... (312,520) 312,520
---------- ----------
Subtotal ........................................................... (524,938) 524,938
---------- ----------
Net loss in accordance with U.S. GAAP .............................. (2,125,293) (858,659)
========== ==========
U.S. GAAP loss per share ........................................... (3.70) (1.50)
========== ==========
Weighted average number of common stock outstanding
(Note 20) ......................................................... 574,037,149 574,037,149
=========== ===========
</TABLE>
F-43
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
30. DIFFERENCES BETWEEN CHILEAN AND UNITED STATES GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES:--(CONTINUED)
(viii) Effects of conforming to U.S. GAAP:
The adjustments required to conform to shareholders' equity amounts with
U.S. GAAP are as follows:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
DECEMBER 31,
------------------------------
1996 1997
THCH$ THCH$
--------------- ------------
<S> <C> <C>
Shareholders' equity as shown in the Chilean GAAP
financial statements ...................................... (4,476,218) 218,756
Impairment of long-lived assets (paragraph a(iii)) ......... (212,418) --
Capital contributions (paragraph a(vi) ..................... 2,474,768
Push-down accounting (paragraph a(v) ....................... -- 2,485,402
Allowance for doubtful accounts (paragraph a(iv)) .......... (312,520) --
---------- ---------
Subtotal ................................................... 1,949,830 2,485,402
---------- ---------
Shareholders' equity in accordance with U.S. GAAP .......... (2,526,388) 2,704,158
========== =========
</TABLE>
(b) Additional Disclosure:
(i) Cash Flow Information:
The cash flow statement prepared in conformity with Chilean GAAP are set
out on page 4. The principal difference between these statements and cash flow
statements prepared under US GAAP is the inclusion of the effect of price-level
restatement in each caption for the calculation of the cash from operating,
investing and financing activities, under Chilean GAAP, which removed and
included within operating activities under US GAAP.
A summary of the Company's operating, investing and financing activities
classified in accordance with USGAAP is presented below.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------
1996 1997
THCH$ THCH$
--------------- -------------
<S> <C> <C>
Cash used in operating activities ............. (1,934,339) (208,888)
Cash provided by financing activities ......... 2,065,319 382,936
Cash used in investing activities ............. (182,341) (132,818)
---------- --------
Net (decrease) increase in cash ............... (51,361) 41,230
Balance at the beginning of the year .......... 76,616 25,255
---------- --------
Balance at the end of the year ................ 25,255 66,485
========== ========
</TABLE>
F-44
<PAGE>
FIRSTCOM LONG DISTANCE S.A.
NOTES TO THE FINANCIAL STATEMENTS--(CONTINUED)
30. DIFFERENCES BETWEEN CHILEAN AND UNITED STATES GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES:--(CONTINUED)
Supplemental Non-cash Investing and Financing Activities:
a. During the year ended December 31, 1996 and 1997, the Company financed
certain capital expenditures totaling ThCh$ 218,651 and ThCh$ 0,
respectively by entering into capital leasing arrangements.
b. During the year ended December 31, 1996 and 1997, the Company acquired
assets and assumed a corresponding liability with related parties totaling
ThCh$ 410,078 and ThCh$ 0, respectively.
c. During the year ended December 31, 1997, approximately ThCh$ 6,078,571
of liabilities previously held as short-term bank liabilities and amounts
payable to related parties were reclassified to equity subsequent to the
Superintendency's approval of the capital increase. See Note 20.
(ii) Bad Debt Expense and Fixed Asset Write-Downs:
During 1996 and 1997, the Company recorded bad debt expense and fixed
asset write-downs as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1996 1997
--------- ----------
THCH$ THCH$
<S> <C> <C>
Bad debt expense ............... 464,449 301,157
======= =======
Fixed asset write-down ......... 3,514 221,816
======= =======
</TABLE>
F-45
<PAGE>
================================================================================
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THE MAKING OF THE
EXCHANGE OFFER PURSUANT TO THIS PROSPECTUS NOR THE ACCEPTANCE OF THE EXISTING
NOTES FOR SURRENDER FOR EXCHANGE PURSUANT THERETO SHALL UNDER ANY CIRCUMSTANCES
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHARGE IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOFOR THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
-----------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information ....................... 4
Prospectus Summary .......................... 5
Risk Factors ................................ 19
Use of Proceeds ............................. 33
Capitalization .............................. 33
The Exchange Offer .......................... 34
Unaudited Pro Forma Condensed
Combined Financial Information ........... 43
Selected Historical Financial Data .......... 46
Management's Discussion and Analysis
of Financial Condition and
Results of Operations .................... 48
Business .................................... 58
Management .................................. 78
Certain Relationships and
Related Party Transactions ............... 83
Description of Senior Notes ................. 86
Federal Income Tax Considerations ........... 121
Plan of Distribution ........................ 126
Legal Matters ............................... 126
Experts ..................................... 126
Glossary of Defined Terms ................... 127
Index to Financial Statements ............... F-1
</TABLE>
[LOGO TO COME]
-----------------------------------
OFFER TO EXCHANGE
-----------------------------------
14% SENIOR NOTES
DUE OCTOBER 27, 2007,
FOR ALL OUTSTANDING
14% SENIOR NOTES
DUE OCTOBER 27, 2007
, 1998
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
ICCA's Articles of Incorporation and By-laws contain certain provisions
that eliminate the liability of its directors and officers to the fullest
extent permitted by the Texas Business Corporation Act, except that they do not
eliminate liability for: (i) any breach of the duty of loyalty to the Company
or its stockholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) an act or omission
for which the liability of a director is expressly provided by an applicable
statute; or (iv) any transaction from which the director derived an improper
personal benefit. The Texas Business Corporation Act provides that Texas
corporations may indemnify any director, officer or employee made or threatened
to be made a party to a proceeding, by reason of the former or present official
capacity of such person, if such person (i) conducted himself in good faith and
(ii) reasonably believed that his conduct was in the corporation's best
interests or, in the case of any criminal proceeding, that his conduct was not
unlawful and opposed to the corporation's best interests. The indemnification
provision does not permit indemnification of officers, directors and employees
(i) when such persons are found liable to the corporation or (ii) for any
transaction from which such persons derive improper personal benefits. The
foregoing provisions may reduce the likelihood of derivative litigation against
directors, officers and employees of the Company and may discourage or deter
shareholders or management from bringing a lawsuit against directors and
officers for breaches of their fiduciary duties, even though such an action, if
successful, might otherwise have benefited the Company and its shareholders.
The Company has entered into an indemnification agreement with each
director (an "Indemnitee"). Pursuant to the indemnification agreement, the
Company will indemnify an Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by the
agreement, ICCA's Articles of Incorporation and By-laws, or statute. In
addition, the Company will indemnify each Indemnitee against any and all
expenses incurred in connection with claims relating to the fact that such
Indemnitee is or was a director, officer, employee, agent or fiduciary of the
Company or any subsidiary of the Company, and the Company will advance all such
expenses. The Company maintains directors' and officers' liability insurance.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
2.1 Stock Purchase Agreement, dated as of September 9, 1997, as amended, between
InterAmericas Communications Corporation and Inversiones Druma S.A. for the acquisition
of 99.9% of the outstanding shares of capital of Iusatel Chile S.A., previously filed as an exhibit
to Registrant's Current Report of Form 8-K, filed with the Commission on September 24, 1997
and incorporated herein by reference.
3.1 Articles of Incorporation of InterAmericas Communications Corporation previously filed as an
exhibit to the Registrant's Form 8-A Registration Statement, filed with the Commission on
November 29, 1994 and incorporated herein by reference.
3.2 By-laws of InterAmericas Communications Corporation.
4.1 Purchase Agreement, dated as of October 21, 1997, by and among InterAmericas
Communications Corporation, Hewster Chile S.A. Red de Servicios Empresariales de
Telecommunicaciones S.A. and UBS Securities LLC, previously filed as an exhibit to the
Registrant's Registration Statement on Form S-4, filed with the Commission on December 10,
1997 and incorporated herein by reference.
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
4.2 Form of Existing Note, previously filed as an exhibit to the Registrant's Registration Statement
on Form S-4, filed with the Commission on December 10, 1997 and incorporated herein by
reference.
4.3 Indenture, dated as of October 27, 1997 between InterAmericas Communications Corporation
and State Street Bank & Trust Company, N.A., previously filed as an exhibit to the Registrant's
Registration Statement on Form S-4, filed with the Commission on December 10, 1997 and
Incorporated herein by reference.
4.4 A/B Exchange Registration Rights Agreement, dated as of October 27, 1997, between
InterAmericas Communications Corporation and UBS Securities LLC, previously filed as an
exhibit to the Registrant's Registration Statement on Form S-4, filed with the Commission on
December 10, 1997 and incorporated herein by reference.
4.5 Warrant Agreement, dated as of October 27, 1997, between the Company and State Street
Bank & Trust Company, N.A., previously filed as an exhibit to the Registrant's Registration
Statement on Form S-4, filed with the Commission on December 10, 1997 and incorporated
herein by reference.
4.6 Warrant Registration Rights Agreement, dated as of October 27, 1997, between InterAmericas
Communications Corporation and UBS Securities LLC, previously filed as an exhibit to the
Registrant's Registration Statement on Form S-4, filed with the Commission on December 10,
1997 and incorporated herein by reference.
4.7 Specimen of InterAmericas Communications Corporation 14% Senior Note due October 27,
2007, previously filed as an exhibit to the Registrant's Registration Statement on Form S-4,
filed with the Commission on December 10, 1997 and incorporated herein by reference.
4.8 Proceeds Pledge and Escrow Agreement, dated as of October 27, 1997 between InterAmericas
Communications Corporation and State Street Bank and Trust Company, N.A., previously filed
as an exhibit to the Registrant's Registration Statement on Form S-4, filed with the
Commission on December 10, 1997 and incorporated herein by reference.
5.1 Opinion of Baker & McKenzie.
8.1 Opinion re tax matters.
10.1 Employment and Severance Agreement, dated as of October 7, 1997, between InterAmericas
Communications Corporation and Patricio E. Northland.
10.2 Employment and Severance Agreement, dated as of April 14, 1997, between InterAmericas
Communications Corporation and Douglas G. Geib II.
11.1 Statement regarding Computation of Per Share Earnings, previously filed as an exhibit to
Registrant's Annual Report on Form 10-KSB, filed with the Commission on March 9, 1998 and
incorporated herein by reference.
12 Statement Regarding Computation of Earnings to Fixed Charges.
21.1 Subsidiaries of the Registrant, previously filed as an exhibit to Registrant's Annual Report on
Form 10-KSB, filed with the Commission on March 9, 1998 and incorporated herein by
reference.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Baker & McKenzie (included in Exhibit 5.1).
23.3 Consent of Arthur Andersen LLP/Langton Clarke y Cia.
25.1 Statement of Eligibility of State Street Bank and Trust Company, N.A., previously filed as an
exhibit to the Registrant's Registration Statement on Form S-4, filed with the Commission on
December 10, 1997 and incorporated herein by reference.
99.1 Form of Letter of Transmittal, previously filed as an exhibit to the Registrant's Registration
Statement on Form S-4, filed with the Commission on December 10, 1997 and incorporated
herein by reference.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
99.2 Form of Notice of Guaranteed Delivery, previously filed as an exhibit to the Registrant's
Registration Statement on Form S-4, filed with the Commission on December 10, 1997 and
incorporated herein by reference.
99.3 Form of Exchange Agent Agreement, previously filed as an exhibit to the Registrant's
Registration Statement on Form S-4, filed with the Commission on December 10, 1997 and
incorporated herein by reference.
99.4 Form of Information Agent Agreement, previously filed as an exhibit to the Registrant's
Registration Statement on Form S-4, filed with the Commission on December 10, 1997 and
incorporated herein by reference.
</TABLE>
ITEM 22. UNDERTAKINGS
1. The undersigned Registrant undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person who is
deemed to be an underwriter within the meaning of Rule 145(c), the issuer
undertakes that such reoffering prospectus will contain the information called
for by the applicable registration form with respect to reofferings by persons
who may be deemed underwriters, in addition to the information called for by
the other items of the applicable form.
2. The Registrant undertakes that every prospectus: (i) that is filed
pursuant to paragraph l. immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, 13 or 21 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
4. The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
5. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the
II-3
<PAGE>
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
6. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned registrant has duly caused this amendment to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Coral Gables, Florida on August 12, 1998.
INTERAMERICAS COMMUNICATIONS CORPORATION
By: /s/ DOUGLAS G. GEIB II
------------------------------------
Name: Douglas G. Geib II
Title: Chief Financial Officer
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ PATRICIO E. NORTHLAND* Chairman of the Board of Directors, August 12, 1998
- -------------------------------- President and Chief Executive Officer
Patricio E. Northland (Principal Executive Officer)
/s/ DOUGLAS G. GEIB II Chief Financial Officer and Director August 12, 1998
- -------------------------------- (Principal Financial and
Douglas G. Geib II Accounting Officer)
/s/ DAVID C. KLEINMAN* Director August 12, 1998
- --------------------------------
David C. Kleinman
/s/ GEORGE A. CARGILL* Director August 12, 1998
- --------------------------------
George A. Cargill
/s/ ANDREW HULSH Director August 12, 1998
- --------------------------------
Andrew Hulsh
</TABLE>
- ----------------
*By: /s/ DOUGLAS G. GEIB II
---------------------------
Douglas G. Geib II
Attorney-in-fact
II-5
<PAGE>
SCHEDULE II. VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
BALANCE AT BALANCE AT
DECEMBER 31, DECEMBER 31,
DESCRIPTION 1996 ADDITIONS DEDUCTIONS 1997
------------ -------------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Deferred tax asset valuation allowance ......... $1,900,000 7,800,000 -- $9,700,000
</TABLE>
S-1
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- -------- ----------- ----------
<S> <C> <C>
2.1 Stock Purchase Agreement, dated as of September 9, 1997, as amended, between
InterAmericas Communications Corporation and Inversiones Druma S.A. for the
acquisition of 99.9% of the outstanding shares of capital of Iusatel Chile S.A.,
previously filed as an exhibit to Registrant's Current Report of Form 8-K, filed
with the Commission on September 24, 1997 and incorporated herein by reference.
3.1 Articles of Incorporation of InterAmericas Communications Corporation
previously filed as an exhibit to the Registrant's Form 8-A Registration Statement,
filed with the Commission on November 29, 1994 and incorporated herein by
reference.
3.2 By-laws of InterAmericas Communications Corporation.
4.1 Purchase Agreement, dated as of October 21, 1997, by and among InterAmericas
Communications Corporation, Hewster Chile S.A. Red de Servicios Empresariales
de Telecommunicaciones S.A. and UBS Securities LLC, previously filed as an
exhibit to the Registrant's Registration Statement on Form S-4, filed with the
Commission on December 10, 1997 and incorporated herein by reference.
4.2 Form of Existing Note, previously filed as an exhibit to the Registrant's
Registration Statement on Form S-4, filed with the Commission on December 10,
1997 and incorporated herein by reference.
4.3 Indenture, dated as of October 27, 1997 between InterAmericas Communications
Corporation and State Street Bank & Trust Company, N.A., previously filed as an
exhibit to the Registrant's Registration Statement on Form S-4, filed with the
Commission on December 10, 1997 and Incorporated herein by reference.
4.4 A/B Exchange Registration Rights Agreement, dated as of October 27, 1997,
between InterAmericas Communications Corporation and UBS Securities LLC,
previously filed as an exhibit to the Registrant's Registration Statement on Form S-
4, filed with the Commission on December 10, 1997 and incorporated herein by
reference.
4.5 Warrant Agreement, dated as of October 27, 1997, between the Company and
State Street Bank & Trust Company, N.A., previously filed as an exhibit to the
Registrant's Registration Statement on Form S-4, filed with the Commission on
December 10, 1997 and incorporated herein by reference.
4.6 Warrant Registration Rights Agreement, dated as of October 27, 1997, between
InterAmericas Communications Corporation and UBS Securities LLC, previously
filed as an exhibit to the Registrant's Registration Statement on Form S-4, filed
with the Commission on December 10, 1997 and incorporated herein by reference.
4.7 Specimen of InterAmericas Communications Corporation 14% Senior Note due
October 27, 2007, previously filed as an exhibit to the Registrant's Registration
Statement on Form S-4, filed with the Commission on December 10, 1997 and
incorporated herein by reference.
4.8 Proceeds Pledge and Escrow Agreement, dated as of October 27, 1997 between
InterAmericas Communications Corporation and State Street Bank and Trust
Company, N.A., previously filed as an exhibit to the Registrant's Registration
Statement on Form S-4, filed with the Commission on December 10, 1997 and
incorporated herein by reference.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- -------- ----------- ----------
<S> <C> <C>
5.1 Opinion of Baker & McKenzie.
8.1 Opinion re tax matters.
10.1 Employment and Severance Agreement, dated as of October 7, 1997, between
InterAmericas Communications Corporation and Patricio E. Northland.
10.2 Employment and Severance Agreement, dated as of April 14, 1997, between
InterAmericas Communications Corporation and Douglas G. Geib II.
11.1 Statement regarding Computation of Per Share Earnings, previously filed as an
exhibit to Registrant's Annual Report on Form 10-KSB, filed with the Commission
on March 9, 1998 and incorporated herein by reference.
12 Statement Regarding Computation of Earnings to Fixed Charges.
21.1 Subsidiaries of the Registrant, previously filed as an exhibit to Registrant's Annual
Report on Form 10-KSB, filed with the Commission on March 9, 1998 and
incorporated herein by reference.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Baker & McKenzie (included in Exhibit 5.1).
23.3 Consent of Arthur Andersen/Langton Clarke y Cia.
25.1 Statement of Eligibility of State Street Bank and Trust Company, N.A., previously
filed as an exhibit to the Registrant's Registration Statement on Form S-4, filed
with the Commission on December 10, 1997 and incorporated herein by reference.
99.1 Form of Letter of Transmittal, previously filed as an exhibit to the Registrant's
Registration Statement on Form S-4, filed with the Commission on December 10,
1997 and incorporated herein by reference.
99.2 Form of Notice of Guaranteed Delivery, previously filed as an exhibit to the
Registrant's Registration Statement on Form S-4, filed with the Commission on
December 10, 1997 and incorporated herein by reference.
99.3 Form of Exchange Agent Agreement, previously filed as an exhibit to the
Registrant's Registration Statement on Form S-4, filed with the Commission on
December 10, 1997 and incorporated herein by reference.
99.4 Form of Information Agent Agreement, previously filed as an exhibit to the
Registrant's Registration Statement on Form S-4, filed with the Commission on
December 10, 1997 and incorporated herein by reference.
</TABLE>
EXHIBIT 3.2
BYLAWS
OF
INTERAMERICAS COMMUNICATIONS CORPORATION
1. OFFICES.
InterAmericas Communications Corporation (the "Corporation") may have
offices at such places within or without the State of Texas as the Board of
Directors may from time to time determine or the business of the Corporation may
require, provided that the Corporation maintains a registered office within the
State of Texas.
2. SHARES.
The Board of Directors shall have authority to authorize the issuance,
from time to time without any vote or other action by the stockholders, of any
or all shares of stock of the Corporation of any class at any time authorized,
and any securities convertible into or exchangeable for any such shares, in each
case to such persons and for such consideration, and on such terms as the Board
of Directors from time to time in its discretion lawfully may determine. Shares
so issued, for which the consideration has been paid to the Corporation, shall
be fully paid stock and the holders of such stock shall not be liable for any
further call or assessment thereon.
3. PREEMPTIVE RIGHTS.
No common stockholder of this Corporation shall by reason of his
holding common shares of any class have any preemptive or preferential rights of
purchase to subscribe to any shares of any class of this Corporation, now or
hereafter to be authorized, or any notes, debentures, bonds or other securities
convertible into or carrying options or warrants to purchase shares of any
class, now or hereafter to be authorized, whether or not the issuance of any
such shares, or such notes, debentures. bonds or other securities, would
adversely affect the dividend or voting rights of such stockholder, other than
such rights, if any, as the Board of Directors, in its discretion from time to
time, may grant and at such price as the Board of Directors in its discretion
may fix; and the Board of Directors may issue shares of any class of this
Corporation, or any notes, debentures, bonds, or other securities convertible
into or carrying options or warrants to purchase shares of any class, without
offering any such shares of any class, either in whole or in part, to the
existing stockholders of any class.
4. PERPETUAL EXISTENCE.
The Corporation shall have perpetual existence.
<PAGE>
5. NON-LIABILITY OF STOCKHOLDERS.
The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatsoever.
6. INDEMNIFICATION.
The Corporation shall have power to indemnify any person, including
present or former directors, officers, trustees, employees or agents of the
Corporation or any person who is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, to the extent permitted
by the Texas Business Corporations Act (the "Act"), and/or the Bylaws of the
Corporation. Such indemnification shall be in addition to all other rights to
which those indemnified may be entitled under any statute, bylaw, agreement,
vote of stockholders or otherwise.
7. MEETING OF STOCKHOLDERS.
(a) PLACE OF MEETING. All meetings of the stockholders of the
Corporation shall be held in Bedford, Texas or at such other place within or
without the State of Texas as shall be designated by the Board of Directors in
the notice of such meeting.
(b) ANNUAL MEETING. The Board of Directors may fix the date and time of
the annual meeting of the stockholders, but if no such date and time is fixed by
the Board of Directors, the meeting for any calendar year shall be held on the
third Thursday of October, if not a legal holiday, and if a legal holiday, then
on the next succeeding day which is not a legal holiday. At the annual meeting,
the stockholders then entitled to vote shall elect by written ballot directors
and shall transact such other business as may properly be brought before the
meeting.
(c) SPECIAL MEETINGS. Except as provided in the Corporation's Articles
of Incorporation, special meetings of the stockholders of the Corporation for
any purpose or purposes for which meetings may lawfully be called, may be called
at any time for any purpose or purposes by the Board of Directors or by any
person or committee expressly so authorized by the Board of Directors and by the
holders of at least ten (10) percent of all shares entitled to vote at the
proposed special meeting. At any time, upon written request of any person or
persons who have duly called a special meeting, which written request shall
state the purpose or purposes of the meeting, it shall be the duty of the
Secretary to fix the date of the meeting to be held at such date and time as the
Secretary may fix, not less than ten nor more than sixty days after the receipt
of the request, and to give due notice thereof. If the Secretary shall neglect
or refuse to fix the time and date of such meeting and give notice thereof, the
person or persons calling the meeting may do so.
(d) NOTICE OF MEETINGS. Written notice of the place, date and hour of
every meeting of the stockholders, whether annual or special, shall be given not
less than ten nor more than sixty days before the date of the meeting to each
stockholder of record entitled to vote at the meeting. Every notice of a special
meeting shall state the purpose or purposes thereof.
2
<PAGE>
(e) QUORUM, MANNER OF ACTING AND ADJOURNMENT. The holders of a
majority of the stock issued and outstanding (not including treasury stock) and
entitled to vote at a meeting of the stockholders, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute, by the Articles of Incorporation or by these Bylaws. If, however, a
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At any such adjourned meeting, at which a quorum shall be present
or represented, any business may be transacted which might have been transacted
at the meeting as originally noticed. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting. When a quorum is present at any meeting,
the vote of the holders of the majority of the stock having voting power present
in person or represented by proxy shall decide any questions brought before such
meeting, unless the question is one upon which, by express provision of the
applicable statute, the Articles of Incorporation or these Bylaws, a different
vote is required, in which case such express provision shall govern and control
the decision of such question. Except upon those questions governed by the
aforesaid express provisions, the stockholders present in person or by proxy at
a duly organized meeting can continue to do business until adjournment,
notwithstanding withdrawal of enough stockholders to leave less than a quorum.
(f) ORGANIZATION. At every meeting of the stockholders, the President,
or in the case of a vacancy in office or absence of the President, such person
as may be designated by the Board of Directors, shall act as Chairman of such
meeting, and the Secretary, or, in his absence, an assistant secretary, or in
the absence of both the Secretary and the assistant secretaries, a person
appointed by the Chairman of the Meeting shall act as Secretary.
(g) NOTICE OF BUSINESS. No business may be transacted at an Annual
Meeting of stockholders, other than business that is either (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors (or any duly authorized committee thereof), (b) otherwise
properly brought before the Annual Meeting by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (c) otherwise
properly brought before the Annual Meeting by any stockholder of the Corporation
(i) who is a stockholder of record on the date of the giving of the notice
provided for herein, and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies with
the notice procedures set forth below.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
not less than sixty (60) days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding Annual Meeting of stockholders;
PROVIDED, HOWEVER, that in the event that the Annual Meeting is called
3
<PAGE>
for a date that is not within thirty (30) days before or after such anniversary
date, notice by the stockholder in order to be timely must be so received not
later than the close of business on the tenth (10th) day following the day on
which such notice of the date of the Annual meeting was mailed or such public
disclosure of the date of the Annual Meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
Annual Meeting (i) a brief description of the business desired to be brought
before the Annual Meeting and the reasons for conducting such business at the
Annual Meeting, (ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iv) a description of
all arrangements or understandings between such stockholder and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder in
such business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual Meeting to bring such business before the
meeting.
No business shall be conducted at the Annual Meeting of stockholders
except business brought before the Annual Meeting in accordance with the
procedures set forth herein; PROVIDED, HOWEVER, that, once business has been
properly brought before the Annual Meeting in accordance with such procedures,
nothing in this paragraph shall be deemed to preclude discussion by any
stockholder of any such business. If the Chairman of an Annual Meeting
determines that business was not properly brought before the Annual Meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
(h) VOTING: PROXIES. Each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
common stock and the number of votes per share as designated in the designation
of rights adopted with respect to each share of preferred stock registered in
his name on the books of the Corporation on the record date for such meeting.
All elections of directors shall be by written ballot, unless waived by the
stockholders present or unless action is taken pursuant to paragraph 7(i) of the
Bylaws. The vote upon any other matter need not be by ballot. No proxy shall be
voted after three years from its date, unless the proxy provides for a longer
period. Every proxy shall be executed in writing by the stockholder or by his
duly authorized attorney-in-fact and filed with the Secretary of the
Corporation. A proxy, unless coupled with an interest, shall be revocable at
will, notwithstanding any other agreement or any provisions in the proxy to the
contrary, but the revocation of a proxy shall not be effective until notice
thereof has been given to the Secretary of the Corporation. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. A proxy shall not be revoked by the death
or incapacity of the maker unless, before the vote is counted or the authority
is exercised, written notice of such death or incapacity is given to the
Secretary of the Corporation.
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(i) VOTING LISTS. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting. The list shall be arranged in alphabetical order showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
(j) CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless otherwise
provided in the Articles of Incorporation, any action required by law to be
taken at any annual or special meeting of stockholders of the Corporation, or
any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
8. BOARD OF DIRECTORS.
(a) POWERS. The management of the Corporation shall be under the
direction of the Board of Directors; and all powers of the Corporation, except
those specifically reserved or granted to the stockholders by statute, the
Articles of Incorporation or these Bylaws, are hereby granted to and vested in
the Board of Directors.
(b) NUMBER, TERM OF OFFICE AND QUALIFICATION. The Board of Directors
shall consist of such number of directors, not less than five or more than nine,
as may be determined from time to time by the Board of Directors subject to the
provisions of the Articles of Incorporation. The term of each director shall be
for one year from the date of his election; however, each director shall serve
until his successor shall have been duly elected and qualified, unless he shall
resign, become disqualified, disabled or shall otherwise be removed. At each
annual election, the directors chosen to succeed those whose terms then expire
shall be for the same term as the directors they succeed.
(c) NOMINATION OF DIRECTORS. After December 31, 1997, only persons who
are nominated in accordance with the following procedures shall be eligible for
election by the shareholders as Directors. Nominations of persons for election
as Directors of the Company may be made at a meeting of shareholders at which
Directors are being elected (i) by or at the direction of the Board of Directors
and/or by or at the direction of any committee or person authorized or appointed
by the Board of Directors or (ii) by any shareholder of the Company entitled to
vote for the election of Directors at the meeting who complies with the notice
procedures set forth in this paragraph 8(c). Any nomination other than those
governed by clause
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(i) of the preceding sentence shall be made pursuant to timely notice in writing
to the Secretary of the Company. To be timely, a shareholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not less than 90 days prior to the meeting; provided, however, that
in the event that less than 90 days' notice or prior public disclosure of the
date of the meeting is given or made to shareholders, notice by the shareholder
to be timely must be so received not later than the close of business on the 7th
day following the day on which such notice of the date of the meeting was mailed
or such public disclosure was made. Such shareholder's notice to the Secretary
shall set forth (a) as to each person whom the shareholder proposes to nominate
for election as a Director (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class and number of any shares of the Company or any
subsidiary of the Company which are beneficially owned by such person, (iv) any
lawsuits to which such person is a party, (v) the involvement of such person in
or with any business which may be competitive with the Company and (vi) any
other information relating to such person that is required to be disclosed in
solicitations for proxies for election of Directors or in a Schedule 13-D
pursuant to any then existing rule or regulation promulgated under the
Securities Exchange Act of 1934, as amended; and (b) as to the shareholder
giving the notice (i) the name and record address of such shareholder and (ii)
the class and number of shares of the Company which are beneficially owned by
such shareholder. The Company may require any proposed nominee to furnish such
other information as may reasonably be required by the Company to determine the
eligibility of such proposed nominee as a Director. No person shall be eligible
for election as a Director unless nominated as set forth herein.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
(d) VACANCIES. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until his
successor shall have been duly elected and qualified unless he shall resign,
become disqualified, disabled or shall otherwise be removed. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute.
(e) RESIGNATIONS. Any director of the Corporation may resign at any
time by giving written notice to the Chairman of the Board or the Secretary of
the Corporation. Such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
(f) ORGANIZATION. At every meeting of the Board of Directors, the
Chairman of the Board, if there be one, or, in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following officers
present in the order stated: the President; the Vice President; or a Chairman
chosen by a majority of the directors present, shall preside, and the Secretary,
or,
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in his absence, an Assistant Secretary, or in the absence of the Secretary and
the Assistant Secretaries, any person appointed by the Chairman of the meeting,
shall act as Secretary.
(g) PLACE OF MEETING. The Board of Directors may hold its meetings,
both regular and special, at such place or places within or without the State of
Texas as the Chairman of the Board or the Board of Directors may from time to
time determine, or as may be designated in the notice calling the meeting.
(h) ORGANIZATION MEETING. Immediately after each annual election of
directors or other meeting at which the entire Board of Directors is elected,
the newly elected Board of Directors shall meet for the purpose of organization,
election of officers, and the transaction of other business, at the place where
said election of directors was held. Notice of such meeting need not be given.
Such organization meeting may be held at any other time or place which shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the directors.
(i) REGULAR MEETINGS. Regular meetings of the Board of Directors shall
be held without notice at such time and at such place as shall be determined
from time to time by the Board of Directors. Notice of any regular meeting shall
be given in the manner prescribed for special meetings of the Board of
Directors.
(j) SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held whenever called by the Chairman of the Board of Directors, the President
or on the written request of three or more of the directors. Notice of each such
meeting shall be given to each director in writing, or by telephone personally,
at least 24 hours before the time at which the meeting is to be held. Each such
notice shall state the time and place of the meeting to be so held.
(k) QUORUM, MANNER OF ACTING AND ADJOURNMENT. At all meetings of the
Board of Directors a majority of the total number of directors shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute or by the Articles of Incorporation. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
(l) ACTION BY UNANIMOUS WRITTEN CONSENT. Unless otherwise restricted by
the Articles of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee as the case may be.
(m) INTERESTED DIRECTORS OR OFFICERS. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association, or other
organization in which one or more of its
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directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board or
committee thereof which authorized the contract or transaction, or solely
because his or their votes are counted for such purpose, if:
(i) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes
of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(ii) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the stockholders; or
(iii) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by
the Board of Directors, a committee thereof, or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
(n) COMPENSATION. Each director who is not also an employee of the
Corporation or any subsidiary thereof shall be paid such compensation for his
services as a director and shall be reimbursed for such expenses as may be fixed
by the Board of Directors.
(o) COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board of Directors, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it; but no such committee shall have
power or authority in reference to amending the Articles of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of dissolution, removing or
indemnifying directors or amending these Bylaws; and unless the resolution
expressly so provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock. Unless the Board of
Directors otherwise provides, each
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committee may adopt, amend and repeal rules for the conduct of its business. In
the absence of a provision by the Board of Directors or a provision in the rules
of such committee to the contrary, a majority of the entire authorized number of
members of such committee shall constitute a quorum for the transaction of
business, the vote of a majority of the members present at a meeting at the time
of such vote if a quorum is present shall be the act of such committee, and in
other respects each committee shall conduct its business in the same manner as
the Board of Directors conducts its business.
9. NOTICES - WAIVERS - MEETINGS.
(a) WHAT CONSTITUTES NOTICE. Whenever, under the provisions of the
statutes or of the Articles of Incorporation or of these Bylaws, written notice
is required to be given to any directors or stockholder, such notice may be
given to such person, either personally or by sending a copy thereof through the
mail, by telegraph, by private delivery service, or by facsimile transmission,
charges prepaid, to his address appearing on the books of the Corporation. If
the notice is sent-by mail, by telegraph or by private delivery service, it
shall be deemed to have been given to the person entitled thereto when deposited
in the United States mail or with a telegraph office or private delivery service
for transmission to such person. If the notice is sent by facsimile
transmission, it shall be deemed to have been given upon transmission, if
transmission occurs before 12:00 noon at the place of receipt, and upon the day
following transmission, if transmission occurs after 12:00 noon.
(b) WAIVERS OF NOTICE. Whenever any written notice is required to be
given under the provisions of the Articles of Incorporation, these Bylaws, or by
statute, a waiver thereof in writing, signed by the person or persons entitled
to such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice of such meeting. Attendance of a person, either in
person or by proxy, at any meeting, shall constitute a waiver of notice of such
meeting, except when a person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting was not lawfully called or convened.
(c) CONFERENCE TELEPHONE MEETINGS. One or more directors may
participate in a meeting of the Board, or of a committee of the Board, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this paragraph 9(c) shall constitute presence in person at
such meeting.
10. OFFICERS.
(a) NUMBER, QUALIFICATIONS AND DESIGNATION. The officers of the
Corporation shall be chosen by the Board of Directors and shall be a President,
one or more Vice Presidents, a Secretary, a Treasurer, and such other officers
as may be elected in accordance with the provisions of paragraph (c) of this
paragraph 10. The Board of Directors, in its discretion may also choose a
chairman of the Board of Directors (who must be a Director). One person may hold
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more than One office. Officers may be, but need not be, directors or
stockholders of the Corporation.
(b) ELECTION AND TERM OF OFFICE. The officers of the Corporation,
except those elected by delegated authority pursuant to paragraph (c) of this
paragraph 10, shall be elected annually by the Board of Directors, and each such
officer shall hold his office until his successor shall have been elected and
qualified, or until his earlier resignation or removal.
(c) SUBORDINATE OFFICERS, COMMITTEES AND AGENTS. The Board of Directors
may from time to time, elect such other officers, employees or other agents as
it deems necessary, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as are provided in these Bylaws, or
as the Board of Directors may from time to time determine. The Board of
Directors may delegate to any officer or committee the power to elect
subordinate officers and to retain or appoint employees or other agents, or
committees thereof, and to prescribe the authority and duties of such
subordinate officers, committees, employees or other agents.
(d) RESIGNATIONS. Any officer or agent may resign at any time by giving
written notice to the Board of Directors, or to the President or the Secretary
of the Corporation. Any such resignation shall take effect at the date of the
receipt of such notice or at any later time specified therein and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
(e) REMOVAL. Any officer, committee, employee or other agent of the
Corporation may be removed, either for or without cause, by the Board of
Directors or other authority which elected or appointed such officer, committee
or other agent whenever in the judgment of such authority the best interests of
the Corporation will be served thereby.
(f) VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification, or any other cause, shall be filled by the Board of
Directors or by the officer or committee to which the power to fill such officer
has been delegated pursuant to paragraph (c) of this paragraph 10, as the case
may be, and if the office is one for which these Bylaws prescribe a term, shall
be filled for the unexpired portion of the term.
(g) GENERAL POWERS. All officers of the Corporation, as between
themselves and the Corporation, shall, respectively, have such authority and
perform such duties in the management of the property and affairs of the
Corporation as may be determined by these Bylaws, or in the absence of
controlling provisions in the Bylaws, as may be provided by resolution of the
Board of Directors.
(h) THE PRESIDENT. The President shall, subject to the control of the
Board of Directors, have general and active supervision of the affairs,
business, officers and employees of the Corporation. He shall have authority to
sign, execute, and acknowledge, in the name of the Corporation deeds, mortgages,
bonds, contracts or other instruments, authorized by the Board of Directors,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board of Directors, or these Bylaws, to some other officer or
agent of the Corporation. He
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shall, from time to time, in his discretion or at the order of the Board, submit
to the Board reports of the operations and affairs of the Corporation. He shall
also perform such other duties and have such other powers as may be assigned to
him from time to time by the Board of Directors.
(i) THE CHAIRMAN. The Chairman of the Board shall preside at all
meetings of the stockholders and of the Board of Directors, and shall perform
such other duties as may from time to time be assigned to him by the Board of
Directors.
(j) THE VICE PRESIDENTS. The Corporation may have one or more Vice
Presidents, having such duties as from time to time may be determined by the
Board of Directors or by the President.
(k) THE SECRETARY. The Secretary shall keep full minutes of all
meetings of the stockholders and of the Board of Directors; shall be ex officio
Secretary of the Board of Directors; shall attend all meetings of the
stockholders and of the Board of Directors; shall record all the votes of the
stockholders and of the directors and the minutes of the meetings of the
stockholders and of the Board of Directors and of committees of the Board in a
book or books to be kept for that purpose. The Secretary shall give, or cause to
be given, notices of all meetings of the stockholders of the Corporation and of
the Board of Directors; shall be the custodian of the seal of the Corporation
and see that it is affixed to all documents to be executed on behalf of the
company under its seal; shall have responsibility for the custody and
safekeeping of all permanent records and other documents of the Corporation;
and, in general, shall perform all duties incident to the office of Secretary
and such other duties as may be prescribed by the Board of Directors or by the
President, under whose supervision he shall be. The Board of Directors may elect
one or more Assistant Secretaries to perform such duties as shall from time to
time be assigned to them by the Board of Directors or the President.
(l) THE TREASURER. The Treasurer shall have or provide for the custody
of all funds, securities and other property of the Corporation; shall collect
and receive or provide for the collection or receipt of money earned by or in
any manner due to or received by the Corporation; shall deposit or cause to be
deposited all said moneys in such banks or other depositories as the Board of
Directors may from time to time designate; shall make disbursements of corporate
funds upon appropriate vouchers; shall keep full and accurate accounts of
transactions of his office in books belonging to the Corporation; shall,
whenever so required by the Board of Directors, render an accounting showing his
transactions as Treasurer, and the financial condition of the Corporation; and,
in general, shall discharge any other duties as may from time to time be
assigned to him by the Board of Directors. The Board of Directors may elect one
or more Assistant Treasurers to perform the duties of the Treasurer as shall
from time to time be assigned to them by the Board of Directors or the
Treasurer.
(m) OFFICER'S BONDS. Any officer shall give a bond for the faithful
discharge of his duties in such sum, if any, and with such surety or sureties as
the Board of Directors shall require. The Corporation may obtain such bonds at
its expense as the Board of Directors shall require.
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(n) COMPENSATION. The compensation of the officers and agents of the
Corporation be fixed from time to time by the Board of Directors or by such
committee as may be designated by the Board of Directors to fix salaries or
other compensation of officers.
11. CERTIFICATES OF STOCK, TRANSFER, ETC.
(a) ISSUANCE. The certificate for stock of the Corporation shall be
numbered and registered in the stock ledger and transfer books or equivalent
records of the Corporation as they are issued. They shall be signed by the
President, or a Vice President, and by the Secretary or an Assistant Secretary
or the Treasurer or an Assistant Treasurer, and shall bear the corporate seal,
which may be a facsimile, engraved or printed. Any of or all the signatures upon
such certificate may be a facsimile, engraved or printed if such certificate of
stock is signed or countersigned by a transfer agent or by a registrar. In case
any officer, transfer agent or registrar who has signed, or whose facsimile
signature has been placed upon any share certificate shall have ceased to be
such officer, transfer agent or registrar before the certificate is issued, it
may be issued with the same effect as if he were such officer, transfer agent or
registrar at the date of its issue.
(b) TRANSFER. Transfers of shares of stock of the Corporation shall be
made on the books of the Corporation upon surrender of the certificates
therefor, endorsed by the person named in the certificate or by attorney
lawfully constituted in writing.
(c) STOCK CERTIFICATES. Stock certificates of the Corporation shall be
in such form as provided by statute and approved by the Board of Directors. The
stock record books and the blank stock certificate books shall be kept by the
Secretary or by any agency designated by the Board of Directors for that
purpose.
(d) LOST, STOLEN, DESTROYED, OR MUTILATED CERTIFICATES. The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of the fact
by the person claiming the certificate of stock to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
(e) RECORD HOLDER OF SHARES. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on it books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Texas.
(f) DETERMINATION OF STOCKHOLDERS OF RECORD. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or
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allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. If no record date is fixed:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close
of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; or
(ii) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Only such stockholders as shall be stockholders on the record date fixed or
determined as aforesaid shall be entitled to notice of or to vote at such
meeting or adjournment, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
12. INDEMNIFICATION OF DIRECTORS, OFFICERS, ETC.
(a) DIRECTORS AND OFFICERS: THIRD PARTY ACTIONS. The Corporation shall
indemnify any director or officer of the Corporation who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact he is or was an authorized representative of the Corporation (which, for
the purposes of this paragraph 12 and paragraph 13 of these Bylaws, shall mean a
director, officer, employee or agent of the Corporation, or a person who is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another Corporation, partnership, joint venture, trust or other
enterprise) for, from and against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) DIRECTORS AND OFFICERS: DERIVATIVE ACTIONS. The Corporation shall
indemnify any director or officer of the Corporation who was or is a party or is
threatened to be made a party to
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any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was an authorized representative of the Corporation, for, from and against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner reasonably believed to be in, or not opposed to, the
best interests of the Corporation and except that no indemnification shill be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the Corporation unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(c) EMPLOYEES AND AGENTS. To the extent that an authorized
representative of the company who neither was nor is a director or officer of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b) of this
paragraph 12 or in defense of any claim, issue or matter therein, he shall be
indemnified by the Corporation for, from and against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith. Such an authorized representative may, at the discretion of the Board
of Directors, be indemnified by the Corporation in any other circumstances to
any extent if the Corporation would be required by paragraphs (a) and (b) of
this paragraph 12 to indemnify such person in such circumstances to such extent
if he were or had been a director or officer of the Corporation.
(d) PROCEDURE FOR EFFECTING INDEMNIFICATION. Indemnification under
paragraphs (a), (b) or (c) of this paragraph 12 shall be made when ordered by a
court and shall be made in a specific case upon a determination that
indemnification of the authorized representative is required or proper in the
circumstances because he has met the applicable standard of conduct set forth in
paragraphs (a) and (b) of this paragraph 12. Such determination shall be made:
(i) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or
(ii) If such a quorum is not obtainable, or, even if
obtainable a majority vote of a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or
(iii) By the stockholders.
If a claim under this paragraph 12 is not paid in full by the Corporation within
ninety days after a written claim has been received by the Corporation. the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any action, suit or
proceeding in advance of its final disposition where the required undertaking
has been tendered to the Corporation) that the claimant has not
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met the standards of conduct which make it permissible for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he had met the applicable standard of conduct, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct shall be a defense to the action or create a
presumption that claimant had not met the applicable standard of conduct.
(e) ADVANCING EXPENSES. Expenses (including attorneys' fees) incurred
in defending a civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding, as authorized by the Board of Directors in a specific case, upon
receipt of an undertaking by or on behalf of an authorized representative to
repay such amount unless it shall ultimately be determined that he is entitled
to be indemnified by the Corporation as required in this paragraph 12 or
authorized by law.
(f) SCOPE OF PARAGRAPH. Each person who shall act as an authorized
representative of the Corporation, shall be deemed to be doing so in reliance
upon such rights of indemnification as are provided in this paragraph 12(f). The
indemnification provided by the paragraph shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any
agreement, vote of stockholders or disinterested directors, statute or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office or position, and shall continue as to
a person who has ceased to be an authorized representative of the Corporation
and shall insure to the benefit of the heirs, executors and administrators of
such a person.
13. INSURANCE.
(a) INSURANCE AGAINST LIABILITY ASSERTED AGAINST DIRECTORS, OFFICERS,
ETC. The Corporation, whenever so authorized by the Board of Directors, may
purchase and maintain insurance on behalf of any authorized representative, as
said term is defined in paragraph 12(a) of these Bylaws, against any liability
asserted against him and incurred by him in such capacity, or arising out of his
status as such, whether or not the Corporation would be authorized or required
to indemnify him by law or paragraph 12 of these Bylaws.
14. MISCELLANEOUS.
(a) CORPORATE SEAL. The corporate seal of the Corporation shall have
inscribed thereon the name of the Corporation and the year of its incorporation.
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or otherwise reproduced.
(b) CHECKS. All checks, notes, bills of exchange or other orders in
writing shall be signed by such person or persons as the Board of Directors, or
officer or officers authorized by resolution of the Board of Directors may, from
time to time, designate.
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(c) CONTRACTS. Except as otherwise provided in these Bylaws, the Board
of Directors may authorize any officer or officers including the President and
any Vice President, or any agent or agents, to enter into any contract or to
execute or deliver any instrument on behalf of the Corporation and such
authority may be general or confined to specific instances.
(d) INSPECTION. The books, accounts and records of the Corporation may
be kept (subject to any provision in the Act) outside the State of Texas at such
place or places as may be designated from time to time by the Board of Directors
and shall be open for inspection in person by any member of the Board of
Directors at all times.
(e) FISCAL YEAR. The fiscal year of the Corporation shall be determined
by the Board of Directors.
15. AMENDMENTS.
(a) AMENDMENTS. These Bylaws may be amended or repealed, and new Bylaws
adopted, by the Board of Directors.
EXHIBIT 5.1
[Baker & McKenzie Letterhead]
August 4, 1998
InterAmericas Communications Corporation
2600 Douglas Road, Suite 501
Coral Gables, Florida 33134
Gentlemen:
InterAmericas Communications Corporation, a Texas corporation (the
"Company"), has filed with the Securities and Exchange Commission a Registration
Statement on Form S-4 (the "Registration Statement") (Registration No.
333-41843) under the Securities Act of 1933, as amended (the "Act"). Such
Registration Statement relates to the offer by the Company to exchange up to
$150.0 million aggregate principal amount of the Company's 14% Senior Notes due
2007 (the "New Notes"), which will be registered under the Act, for a like
principal amount at maturity of the Company's issued and outstanding 14% Senior
Notes due 2007, which were issued in a transaction exempt from the registration
requirements of the Act (the "Old Notes," and together with the New Notes, the
"Notes") (the "Exchange Offer"). We have acted as counsel to the Company in
connection with the preparation and filing of the Registration Statement.
In connection with the Registration Statement, we have examined,
considered and relied upon copies of the following documents (collectively, the
"Documents"): (i) the Indenture (the "Indenture") dated October 27, 1997 by and
between the Company and State Street Bank & Trust Company, N.A. (the "Trustee"),
pursuant to which the Old Notes were issued and the New Notes will be issued;
(ii) the Company's Articles of Incorporation, as amended to date, and Bylaws, as
currently in effect; (iii) certified copies of the resolutions of the Company's
Board of Directors authorizing the Exchange Offer and related matters; (iv) the
Registration Statement and schedules and exhibits thereto and (v) such other
documents and instruments that we have deemed necessary for the expression of
the opinions herein contained. In making the foregoing examinations, we have
assumed, without investigation, the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, the conformity to
authentic original documents of all documents submitted to us as copies and the
veracity of the Documents. As to various questions of fact material to the
opinion expressed below, we have relied, to the extent we deemed reasonably
appropriate, upon the representations or certificates of officers and/or
directors of the Company upon documents, records and instruments furnished to us
by the Company, without independently verifying the accuracy of such
certificates, documents, records or instruments.
To the extent that it may be relevant to the opinions expressed herein,
we have assumed, for the purposes of the opinions expressed herein, that (i) the
Trustee has the power and authority to enter into and perform the Indenture,
(ii) the Indenture has been duly authorized, executed and delivered by the
Trustee and the Indenture is a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms and (iii) the Notes
have been duly authenticated and delivered by the Trustee.
Based upon the foregoing examination, and subject to the qualifications
and assumptions set forth herein, we are of the opinion that the New Notes have
been duly and validly authorized by the Company, and when duly executed by the
proper officers of the Company and issued in exchange for the Old Notes as
contemplated by the Registration Statement, will constitute valid and legally
binding obligations of the Company, entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms. The
enforceability and effectiveness of the provisions of the
<PAGE>
InterAmericas Communications Corporation
August 4, 1998
Page 2
New Notes are limited by and subject to (i) applicable bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting creditors' rights generally and (ii) general
principles of equity (including without limitation, standards of materiality,
good faith, fair dealing and reasonableness) whether such principles are
considered in a proceeding at law or in equity.
Although we have acted as counsel to the Company in connection with the
preparation and filing of the Registration Statement, our engagement has been
limited to certain matters about which we have been consulted. Consequently,
there may exist matters of a legal nature involving the Company in which we have
not been consulted and have not represented the Company. We express no opinion
as to the laws of any jurisdiction other than the federal laws of the United
States and the laws of the State of Texas. The opinions expressed herein concern
only the effect of the federal laws of the United States and the laws (excluding
the principles of conflict of laws) of the State of Texas as currently in
effect. This opinion letter is limited to the matters stated herein and no
opinions may be implied or inferred beyond the matters expressly stated herein.
The opinions expressed herein are given as of this date, and we assume no
obligation to update or supplement our opinions to reflect any facts or
circumstances that may come to our attention or any change in law that may occur
or become effective at a later date.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus forming a part of the Registration Statement.
In giving this consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Act.
Very truly yours,
BAKER & McKENZIE
By: /s/ ANDREW HULSH
---------------------------------
Andrew Hulsh
EXHIBIT 8.1
[Baker & McKenzie Letterhead]
August 4, 1998
InterAmericas Communication Corporation
2600 Douglas Road, Suite 501
Coral Gables, Florida 33134
Gentlemen:
InterAmericas Communications Corporation, a Texas corporation (the
"Company"), has filed with the Securities and Exchange Commission a Registration
Statement on Form S-4 (the "Registration Statement") (Registration No.
333-41843) under the Securities Act of 1933, as amended (the "Act"). Such
Registration Statement relates to the offer by the Company to exchange up to
$150.0 million aggregate principal amount of the Company's 14% Senior Notes due
2007 (the "New Notes"), which will be registered under the Act, for a like
principal amount at maturity of the Company's issued and outstanding 14% Senior
Notes due 2007, which were issued in a transaction exempt from the registration
requirements of the Act (the "Old Notes," and together with the New Notes, the
"Notes") (the "Exchange Offer"). We have acted as counsel to the Company in
connection with the preparation and filing of the Registration Statement.
In connection with the Registration Statement, we have examined,
considered and relied upon copies of the following documents (collectively, the
"Documents"): (i) the Indenture (the "Indenture") dated October 27, 1997 by and
between the Company and State Street Bank & Trust Company, N.A. (the "Trustee"),
pursuant to which the Old Notes were issued and the New Notes will be issued;
(ii) the Company's Articles of Incorporation, as amended to date, and Bylaws, as
currently in effect; (iii) certified copies of the resolutions of the Company's
Board of Directors authorizing the Exchange Offer and related matters; (iv) the
Registration Statement and schedules and exhibits thereto and (v) such other
documents and instruments that we have deemed necessary for the expression of
the opinions herein contained. In making the foregoing examinations, we have
assumed, without investigation, the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, the conformity to
authentic original documents of all documents submitted to us as copies and the
veracity of the Documents. As to various questions of fact material to the
opinion expressed below, we have relied, to the extent we deemed reasonably
appropriate, upon the representations or certificates of officers and/or
directors of the Company upon documents, records and instruments furnished to us
by the Company, without independently verifying the accuracy of such
certificates, documents, records or instruments.
To the extent that it may be relevant to the opinions expressed herein,
we have assumed, for the purposes of the opinions expressed herein, that (i) the
Trustee has the power and authority to enter into and perform the Indenture,
(ii) the Indenture has been duly authorized, executed and delivered by the
Trustee and the Indenture is a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms and (iii) the Notes
have been duly authenticated and delivered by the Trustee.
Based upon the foregoing examination, and subject to the qualifications
set forth below and in the Registration Statement section captioned "Federal
Income Tax Considerations," our opinion under present United Stated federal tax
laws, is set forth in the Registration Statement under the caption "Federal
Income Tax Considerations."
Although we have acted as counsel to the Company in connection with the
preparation and filing of the Registration Statement, our engagement has been
limited to certain matters about which we have been consulted. Consequently,
there may exist matters of a legal nature involving the Company in which we have
not been consulted and have not represented the Company. We express no opinion
as to the
<PAGE>
InterAmericas Communications Corporation
August 4, 1998
Page 2
laws of any jurisdiction other than the federal laws of the United States. The
opinions expressed herein concern only the effect of the federal laws of the
United States as currently in effect. This opinion letter is limited to the
matters stated herein and no opinions may be implied or inferred beyond the
matters expressly stated herein. The opinions expressed herein are given as of
this date, and we assume no obligation to update or supplement our opinions to
reflect any facts or circumstances that may come to our attention or any change
in law that may occur or become effective at a later date.
We hereby consent to the use of our opinion as herein set forth as an
exhibit to the Registration Statement and to the use of our name under the
caption "Legal Matters" in the prospectus forming a part of the Registration
Statement. This consent is not to be construed as an admission that we are a
person whose consent is required to be filed with the Registration Statement
under the Act.
Very truly yours,
BAKER & McKENZIE
By: /S/ BRETT L. GOLD
---------------------------------
Brett L. Gold
EXHIBIT 10.1
EXECUTIVE EMPLOYMENT
AND SEVERANCE AGREEMENT
THIS EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT (the "AGREEMENT") is
executed as of the 7th day of October, 1997, by and between InterAmericas
Communications Corporation, a Texas corporation (hereinafter referred to as the
"COMPANY"), and Patricio E. Northland (hereinafter referred as the "EXECUTIVE").
WITNESSETH:
WHEREAS, the Company desires to assure itself of the benefit of the
Executive's efforts and services for a period of at least three years from the
date hereof:
WHEREAS, the Executive is willing to commit himself to serve the
Company, on the terms and conditions herein provided;
WHEREAS, in order to effect the foregoing, the Company and the
Executive wish to enter into an employment agreement on the terms and conditions
set forth below; and
WHEREAS, this Agreement has been reviewed and approved by the Company's
Compensation Committee of the Board of Directors.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto mutually
covenant and agree follows:
1. DEFINITIONS.
Whenever used in this Agreement, the following terms shall have the
meanings set forth below:
(a) "ACCRUED BENEFITS" shall mean the amount payable not later
than ten (10) days following any applicable date of termination of the
Executive's employment with the Company pursuant to this Agreement (the
"Termination Date") and which shall be equal to the sum of the following
amounts:
(i) All salary earned or accrued through the
Termination Date;
(ii) Reimbursement for any and all monies advanced
concerning the Executive's employment for reasonable and
necessary expenses incurred by the Executive through the
Termination Date;
(iii) Any and all other cash benefits previously
earned through the Termination Date and deferred at the
election of the Executive or pursuant to any deferred
compensation plans then in effect;
(iv) The full amount of any Bonus (as defined in
Section 6(b)) earned by the Executive in the year preceding
the year in which the termination occurs but not paid as of
the Termination Date and the amount of any Bonus payable to
the Executive in accordance with Section 6(b) herein as of the
Termination Date with respect to the year in which termination
occurs, pro rated to reflect the portion of the year in which
such termination occurs during which the Executive was
employed by the Company.
(v) All stock options which have vested or will vest
on or prior to the Termination Date; and
<PAGE>
(vi) All other payments and benefits to which the
Executive may be entitled as of the Termination Date under the
terms of this Agreement (including Sections 6(c)-6(e) hereof),
pro rated to reflect the portion of the year in which such
termination occurs during which the Executive was employed by
the Company.
(b) "ACT" shall mean the Securities Exchange Act of 1934;
(c) "BENEFICIAL OWNER" shall have the same meaning as given to
that term in Rule 13d-3 of the General Rules and Regulations of the Act,
provided that any pledgee of Company voting securities shall not be deemed to be
the Beneficial Owner thereof prior to its disposition of, or acquisition of
voting rights with respect to, such securities;
(d) "BOARD" shall mean the Board of Directors of the Company;
(e) "CAUSE" shall mean any of the following:
(i) The engaging by the Executive in fraudulent
conduct, as evidenced by a judgment, order or decree of a
court or administrative agency of competent jurisdiction, in
an action, suit or proceeding, whether civil, criminal,
administrative or investigative, which the Board reasonably
determines has or would have a material adverse impact on the
Company in the conduct of the Company's business;
(ii) Conviction of the Executive of a felony criminal
offense, as evidenced by a binding judgment, order or decree
of a court of competent jurisdiction, which the Board
reasonably determines has or could have a material adverse
impact on the Company in the conduct of the Company's
business;
(iii) Willful refusal by the Executive to perform the
Executive's material duties or responsibilities (unless
significantly changed without the Executive's consent); or
(iv) Gross Negligence by the Executive in performing
the Executive's material duties or responsibilities (unless
significantly changed without the Executive's consent)
Notwithstanding the foregoing, Cause shall not exist under Sections 1
(e)(iii) or (iv) herein unless the Company furnishes written notice to the
Executive of the specific offending conduct and the Executive fails to correct
such offending conduct within the fifteen (15) day period commencing on the
receipt of such notice.
(f) "CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time;
(g) "EFFECTIVE DATE" shall mean October 1, 1997,
notwithstanding the date that this Agreement is executed by the parties hereto.
(h) "GOOD REASON" shall mean:
(i) The required relocation of the Executive, without
the Executive's consent, to an employment location which is
more than seventy-five (75) miles from the Executive's
employment location on the day preceding the date of this
Agreement;
(ii) Any reduction by the Company in the compensation
and/or benefits (including Bonus) provided to the Executive as
in effect on the Effective Date as the same may be increased
from time to time after the Effective Date;
(iii) The removal of the Executive from or any
failure to elect the Executive to any of the positions to be
held by the Executive pursuant to this Agreement except in the
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<PAGE>
event that such removal or failure to reelect is related to
termination by the Company of the Executives employment for
Cause or by reason of death, Disability (as hereinafter
defined) or voluntary retirement;
(iv) Breach or violation of any material provision of
this Agreement by the Company;
(v) The assignment to the Executive of duties,
responsibilities or authority that is materially inconsistent
with Sections 4(a) and 4(b) hereof; or
(vi) A material breach by the Company of the
representation or warranty of the Company set forth in
Sections 6(e) hereof.
(i) "NOTICE OF TERMINATION" shall mean the notice described in
Section 14 herein;
(j) "PERSON" shall mean any individual, partnership, joint
venture, association, trust, corporation or other entity (including a "group" as
defined in Section 13 (d)(3) of the Act), other than an employee benefit plan of
the Company or an entity organized, appointed or established pursuant to the
terms of any such benefit plan;
(k) "TERMINATION PAYMENT" shall mean the payment described in
Section 13 herein;
2. EMPLOYMENT.
The Company hereby agrees to employ the Executive and the Executive
hereby agrees to serve the Company, on the terms and conditions set forth
herein.
3. TERM.
The employment of the Executive by the Company pursuant to the
provisions of this Agreement shall be for a period of three years commencing on
the Effective Date and end on the third anniversary thereof. Such period is
hereinafter defined as the "Employment Term."
4. POSITIONS AND DUTIES.
(a) The Executive shall serve as Chairman of the Board,
President and Chief Executive Officer of the Company. In connection with the
foregoing positions, the Executive shall have such duties, responsibilities and
authority as may from time to time be assigned to the Executive by the Board,
provided such duties, responsibilities and authority are of a nature customarily
assigned to directors and chief executive officers of companies similar in size
and structure to the Company. The Executive shall devote substantially the
entire Executive's working time and reasonable efforts to the business and
affairs of the Company.
(b) The Executive shall have the authority to do or to
delegate to another executive officer of the Company or any subsidiary of the
Company the following, provided, however, the Executive Committee or the Board
of Directors must approve those items exceeding $250,000 in total:
(i) Approve budgets, cash flow plans and schedules
and any amendments thereto;
(ii) Enter into or materially amending any contract
for the sale, lease, exchange or other disposition of any
portion of the property or assets of the Company other than in
the ordinary and normal course of business, including, without
limitation, any lease, or contract for the disposition of any
real property;
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<PAGE>
(iii) Approve all employment contracts, employee
benefit plans, parameters for collective bargaining and other
material labor agreements, if any, fundamental personnel
policies and all material amendments thereto;
(iv) Appoint all officers of subsidiaries of the
Company, subject to compliance with applicable local laws and
regulations. Such appointment will include consultation with
the Company's Board of Directors;
(v) Approve the Company's operating and expansion
program, cash flow plans and schedules and any amendments
thereto;
(vi) Commence, terminate or settle any claim or
lawsuit or other legal action or arbitral or administrative
proceeding, after obtaining any required approval of the
Executive Committee;
(vii) Incur indebtedness not in excess of $250,000 in
aggregate principal amount at any one time outstanding;
(viii) Provide or acquire all materials, supplies,
machinery, equipment and services required for the Company and
disposing of the same in the ordinary course of business;
(ix) Procure from outside experts and consultants all
legal, accounting, and other professional services required by
the Company;
(x) Hire, or allocate from its own personnel, all
executives, managers and employees required for the operation
of the business of the Company, including the selection, terms
of employment and termination thereof, rights of compensation
and the supervision, direction, training and assignment of
duties of all employees;
(xi) Prepare and file all reports, returns and
notices required to be filed by the Company;
(xii) Secure and maintain adequate liability and
property insurance, in accordance with good industry practice,
covering the insurable risks of the Company;
(xiii) Open and maintain such bank accounts in the
Company's name as the Executive shall deem appropriate, with
funds authorized to be withdrawn therefrom upon signature of
such Executive, Executive Committee or Board of Directors as
the Executive shall deem appropriate;
(xiv) Take any action contemplated to be taken under
the Indenture relating to the Company's offering of Units
through UBS Securities or any type of financing;
(xv) Take any other action that may be authorized by
the Board of Directors; and;
(xvi) Represent, direct and manage all of the
affiliates and or subsidiaries of the Company, subject to
compliance with applicable laws and regulations.
(c) The Executive shall report to the Board of Directors.
5. PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company, the
Executive shall be based in Miami, Florida, except for required travel on
Company business.
4
<PAGE>
6. COMPENSATION AND RELATED MATTERS.
During the Employment Term, the Company shall pay or provide to the
Executive the following compensation and other benefits:
(a) Upon execution of this Agreement, (i) the Executive shall
be paid a signing bonus of $250,000; (ii) all of the 1,000,000 options
to purchase the Company's Common Stock par value $.001 per share
("Common Stock") granted to the Executive under his prior employment
agreement with the Company shall vest and become immediately
exercisable (iii) the Executive shall receive 600,000 shares of Common
Stock (the "Incentive Shares"); and (iv) the Executive shall be granted
an option (the " Option") to purchase 600,000 shares of the Company's
Common Stock. One-third of the Option may be exercised, in whole or in
part, upon the signing of this Agreement and shall represent the right
to purchase 200,000 shares of Common Stock; one-third of the Option
shall vest one year after the signing of this Agreement and shall
represent the right to purchase 200,000 shares of Common Stock; and
one-third of the Option shall vest two years after the signing of this
Agreement and shall represent the right to purchase 200,000 shares of
Common Stock. All shares of Common Stock subject to the Option may be
purchased at a price of $2.13 per share, subject to adjustment as set
forth in an Option Agreement between the Company and the Executive. The
Option shall expire ten (10) years from the date hereof (the
"EXPIRATION DATE"), and must be exercised, if at all, in whole or in
part on or before the Expiration Date; PROVIDED HOWEVER, that upon the
termination of the Executive's employment hereunder for Cause,
Disability or death or upon the Executive's voluntary resignation as an
employee of the Company prior to the expiration of the Employment Term
for any reason other than Good Reason, any portion of the Option which
has not vested prior to such termination or resignation shall be
canceled and shall no longer be exercisable; and PROVIDED FURTHER, that
the entire Option shall vest on (a) upon the termination of the
Executive's employment for any reason other than "Cause", Disability or
death, and (b) upon the voluntary termination of employment by
Executive for "Good Reason". The Option Agreement will be in
substantially the form of Exhibit "1" attached hereto. The Company
shall use its best efforts to provide assistance to cause a loan to be
provided to the Executive in an amount which represents his estimated
income tax liability resulting from the issuance of the Incentive
Shares, through an investment banker or other third party, if
available, or from the Company, if such other entities are unwilling to
make such a loan.
(b) The Company shall pay to the Executive an annualized base
salary at a rate of (i) $350,000 during the first year of the
Employment Term, (ii) $400,000 during the second year of the Employment
Term and (iii) $450,000 during the third year of the Employment Term.
All payments of base salary shall be made in equal installments as
nearly as practicable on the fifteenth and last days of each month, in
arrears. The Executive's base salary may be increased above the
foregoing amounts at the discretion of the Board of Directors.
(c) The Executive shall be entitled to receive an annual
performance award (a "Bonus"), as determined by the Board of Directors
in its reasonable discretion, not to exceed the Executive's prevailing
annual base salary, based upon the fulfillment of the Executive's
duties as specified in Section 4(b) hereof and the achievement of
certain performance criteria (the "Performance Criteria"). Within 60
days prior to the end of each fiscal year of the Company during the
Term, the Compensation Committee shall provide a description of the
Performance Criteria to the Executive for the ensuing year of the Term.
Any Bonus earned by the Executive pursuant to this Section 6(b) shall
be paid to the Executive by March 31 of each year based on the
performance of the Executive during the preceding year and shall be
prorated for any partial years of employment. The Executive shall also
be compensated for Incremental Revenues generated during the term of
this Agreement. Incremental Revenues shall be defined as the increase
in revenues earned by the Company in any fiscal year relative to the
prior fiscal year. The Revenue Performance Award shall be paid as
follows: (a) In March 1998, the Executive shall be paid 2.5% of the
Incremental Revenues generated in the 1997 fiscal year, (b) in March
1999, the Executive shall be paid 2.0% of the Incremental Revenues
generated in the 1998 fiscal year, and (c) in
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<PAGE>
March 2000, the Executive shall be paid 1.5% of the Incremental
Revenues generated in the 1999 fiscal year. The Incremental Revenues
upon which the Revenue Performance Award is calculated shall only be
calculated for the immediately preceding fiscal year, and shall not be
cumulative over the term of this Agreement. In addition, the 1997
revenues of Iusatel Chile S.A. shall not be considered for purposes of
determining the Incremental Revenues of the Company under this
Agreement.
(d) During the Employment Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in performing services hereunder, including,
but not limited to, all expenses of travel, entertainment and living
expenses while away from home on business or at the request of and in
the service of the Company, provided that such expenses are incurred
and accounted for in accordance with the policies and procedures
presently established by the Company;
(e) The Executive hereby is granted an additional option (the
"Additional Option") to purchase 300,000 shares of the Company's Common
Stock. The Additional Option may be exercised, in whole or in part,
subject to the following sentence, in accordance with the following
vesting schedule: (i) one-third of the Additional Option shall vest
immediately upon the signing this Agreement and shall represent the
right to purchase 100,000 shares of Common Stock at $4.00 per share;
(ii) one-third of the Additional Option shall vest one year after the
signing of this Agreement and shall represent the right to purchase
100,000 shares of Common Stock at $6.00 per share; and (iii) one-third
of the Additional Option shall vest two years after the signing of this
Agreement and shall represent the right to purchase 100,000 shares of
Common Stock at $8.00 per share. The Additional Option shall expire on
the Expiration Date, and must be exercised, if at all, in whole or in
part, on or before the Expiration Date; PROVIDED HOWEVER, that upon the
termination of the Executive's employment hereunder for Cause,
Disability or death or upon the Executive's voluntary resignation as an
employee of the Company prior to the expiration of the Employment Term
for any reason other than Good Reason, any portion of the Option which
has not vested prior to such termination or resignation shall be
canceled and shall no longer be exercisable; and PROVIDED FURTHER, that
the entire Option shall vest on (a) upon the termination of the
Executive's employment for any reason other than "Cause" Disability or
death, and (b) upon the voluntary termination of employment by
Executive for "Good Reason". The Option Agreement will be in
substantially the form of Exhibit "2" attached hereto
(f) The Executive shall be entitled to four weeks paid
vacation in each calendar year, and to compensation in respect of earned but
unused vacation days, determined in accordance with the Company's vacation plan
or policy. The Executive shall also be entitled to all paid holidays provided by
the Company to its executive officers;
(g) The Company shall furnish the Executive with office space
and such other facilities and services as shall be suitable to the Executive's
position and adequate for the performance of the Executive's duties as set forth
in Section 4 herein.
(h) The Executive shall be provided with major medical,
hospitalization, and dental insurance and other benefits upon terms and
conditions similar to those provided to the Company's other executive officers.
(i) The Executive shall be provided with disability insurance
and life insurance in an amount that will not exceed annual premium payments by
the Company of $25,000.00.
(j) The Executive shall be provided a car allowance not to
exceed $1,000 per month.
(k) The Executive shall be allowed to participate in a 401K
retirement program that provides a Company contribution that is equal to the
maximum amount permitted by law.
7. OFFICES.
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The Executive agrees to serve without additional compensation, if
elected or appointed thereto, as a member of the Board of Directors or any
subsidiary of the Company; provided, however, that the Executive shall be
indemnified for serving in any and all such capacities on a basis no less
favorable than is currently provided in the Company's bylaws.
8. TERMINATION AS A RESULT OF DEATH.
If the Executive shall die during the term of this Agreement, the
Executive's employment shall terminate on the Executive's date of death and the
Executive's surviving spouse, or the Executive's estate if the Executive dies
without a surviving spouse, shall be entitled to the applicable Termination
Payment as defined in Section 13(a) and all Accrued Benefits.
9. TERMINATION FOR DISABILITY.
If, as a result of physical or mental disability, the Executive shall
have been unable to perform the Executive's duties hereunder on a full-time
basis for ninety consecutive days or 180 days in any 360 day period (a
"Disability"), the Company may terminate the Executive's employment subject to
Section 14 herein. During the term of the Executive's Disability prior to
termination, the Executive shall continue to receive all salary and benefits
payable under Section 6 herein, including participation in all employee benefit
plans, programs and arrangements in which the Executive was entitled to
participate immediately prior to the terms and provisions of such plans,
programs, and arrangements. In the event that the Executive's participation in
any such plan, program or arrangement is barred as the result of such
Disability, the Executive shall be entitled to receive an amount equal to the
contributions, payments, credits or allocations which would have been paid by
the Company to the Executive, to the Executive's account or on the Executive's
behalf under such plans, programs and arrangements. In the event the Executive's
employment is terminated on account of the Executive's Disability in accordance
with this Section 9, the Executive shall receive the Executive's Accrued
Benefits as of the Termination Date and shall remain eligible for all benefits
provided by any long-term disability programs of the Company in effect at the
time of such termination. Upon termination for Disability, the Executive shall
be entitled to the Termination Payment as defined in Section 13(a) and all
Accrued Benefits.
10. TERMINATION FOR CAUSE.
If the Executive's employment with the Company is terminated by the
Company for Cause, subject to the procedures set forth in Section 14 herein, the
Executive shall not be entitled to receipt of any Termination Payment, but shall
be entitled to receive all Accrued Benefits (other than any prorated Bonus
pursuant to Section 6(b) hereof).
11. OTHER TERMINATION BY COMPANY OR BY THE EXECUTIVE.
If the Executive's employment with the Company is terminated by the
Company other than by reason or death, Disability or Cause, or if the Executive
terminates his employment with the Company for Good Reason, subject to the
procedures set forth in Section 14 herein, the Executive (or in the event of the
Executive's death following the Termination Date, the Executive's surviving
spouse or the Executive's estate if the Executive dies without a surviving
spouse) shall receive the applicable Termination Payment as defined in Section
13(b) and the Accrued Benefits.
12. VOLUNTARY TERMINATION BY EXECUTIVE.
Provided that the Executive furnishes thirty (30) days prior written
notice to the Company, the Executive shall have the right to voluntarily
terminate this Agreement at any time. If the Executive's voluntary termination
is without Good Reason, the Executive shall receive the Executive's Accrued
Benefits as of the Termination Date (other than any prorated Bonus pursuant to
Section 6(b) hereof) and shall not be entitled to any Termination Payment.
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<PAGE>
13. TERMINATION PAYMENT.
(a) If the Executive's employment is terminated as a result of
death or Disability, the lump sum Termination Payment payable to the Executive
shall be equal to 100% of the Executive's then current annual base salary;
(b) If the Executive's employment is terminated by the
Executive for Good Reason or by the Company for any reason other than death,
Disability or Cause, the lump sum Termination Payment payable to the Executive
shall be equal to the greater of (i) 100% of the Executive's then current annual
base salary or (ii) the aggregate amount of base salary to be paid to the
Executive for the remainder of the Employment Term.
(c) If any portion of the Termination Payment is determined to
constitute a "parachute payment" (as defined in Section 280G of the Code), the
Executive hereby agrees to pay any excise tax imposed on such portion of the
Termination Payment by Section 4999 of the Code and the Company hereby
acknowledges and agrees that such portion of the Termination Payment will not be
deductible to the Company pursuant to Section 280G of the Code.
(d) The Termination Payment shall be payable in a lump sum not
later than ten (10) days following the Executive's Termination Date. Any present
value or similar factor shall not reduce such lump sum payment. Further, the
Executive shall not be required to mitigate the amount of such payment by
securing other employment or otherwise and such payment shall not be reduced due
to the Executive securing other employment or for any other reason.
14. TERMINATION NOTICE AND PROCEDURE.
Any termination by the Company or the Executive of the Executive's
employment during the Employment Term shall be communicated by written Notice of
Termination to the Executive if such Notice of Termination is delivered by the
Company and to the Company if such Notice of Termination is delivered by the
Executive, all in accordance with the following procedures:
(a) The Notice of Termination shall indicate the specific
termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances alleged to provide a
basis for termination. In the event of a termination claimed by the
Company pursuant to Section 1(e)(iii) or (iv) hereof and the Executive
notifies the Company that a dispute exists concerning the termination
within the fifteen (15) day period following the cure period specified
in Section 1(e) hereof, the Executive shall continue to receive 50% of
the Executive's base salary and all other benefits to which he is
entitled to receive hereunder until the earlier of (i) 60 days
following such termination or (ii) resolution of such dispute in
accordance with Section 16 hereof. If such dispute is resolved in favor
of the Executive, the Company shall immediately pay the Executive the
remainder of the base pay that was not paid to the Executive during the
pendency of the dispute. If at any time during the pendency of such
dispute the Company fails to pay and provide such base salary and
benefits to the Executive in a timely manner the Company shall be
deemed to have automatically waived whatever rights it then may have
had to terminate the Executive's employment for "cause."
(b) Any Notice of Termination by the Company shall be approved
by a resolution duly adopted by a majority of the directors of the
Company then in office;
(c) If the Executive shall in good faith furnish a Notice of
Termination for Good Reason and the Company notifies the Executive that
a dispute exists concerning the termination within the fifteen (15) day
period following the Company's receipt of such notice, the Executive
shall continue the Executive's employment during such dispute. If it is
thereafter determined that (i) Good Reason did exist, the Executive's
Termination Date shall be deemed to be the date on which the dispute is
finally determined, either by mutual written agreement of the parties
or pursuant to Section 16 herein or (ii) Good Reason did not exist, the
employment of the Executive
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<PAGE>
shall continue after such determination as if the Executive had not
delivered the Notice of Termination asserting Good Reason;
(d) If the Executive gives notice to terminate his employment
for Good Reason and a dispute arises as to the validity of such
termination, and the Executive does not continue his employment during
such dispute, and it is finally determined that the reason for
termination set forth in such Notice of Termination did not exist, if
such notice was delivered by the Executive, the Executive shall be
deemed to have voluntarily terminated the Executive's employment other
than for Good Reason.
15. NON-COMPETE.
A) The Executive hereby agrees that during the term of this Agreement
and for the period of six months from the Executive's Termination Date or the
termination of this Agreement (other than termination upon the expiration of the
Employment Term) that the Executive will not:
(i) Within any jurisdiction or marketing area in the United
States or Latin America in which the Company or any subsidiary thereof
is doing business, own, manage, operate or control any business of the
type and character engaged in the telecommunications industry and
competitive with the Company or any subsidiary thereof. For purposes of
this paragraph, ownership of securities of not in excess of five
percent (5%) of any class of securities of a public company shall not
be considered to be competition with the Company or any subsidiary
thereof in the telecommunications industry; or
(ii) Within any jurisdiction or marketing area in the United
States or Latin America in which the Company or any subsidiary thereof
is doing business, act as, or become employed as, an officer, director,
employee, consultant or agent of any business of the type and character
engaged in and competitive with the Company or any of its subsidiaries
in the telecommunications industry; or
(iii) Solicit the business of or sell any products to any
company in the United States or Latin America, which is as of the date
hereof, a customer or client of the Company or any of its subsidiaries,
or was such a customer or client thereof WITHIN two years prior to the
date of this Agreement if such solicitation or sale results in
competition to the Company; or
(iv) Solicit the employment of, or hire, any full time
employee employed by the Company or its subsidiaries as of the date of
termination of this Agreement.
B) Notwithstanding anything in this Agreement to the contrary the
Executive shall be entitled to continue receive his base salary as provided in
section 6(b) hereof during the period in which the Executive is restricted from
acting pursuant to section 15(a) hereof. Furthermore, the Company recognizes and
agrees that the Executive is a 50% shareholder and Director in Northland
Communications, Inc., a company which provides Internet-related services, and
that such involvement shall not be deemed to constitute a conflict of interest
with the Executive's responsibilities to the Company or to otherwise violate the
provisions of this section 15.
16. ARBITRATION.
All claims, disputes and other matters in question between the parties
arising under this Agreement, shall, unless otherwise provided herein, be
decided by arbitration in Miami, Florida in accordance with the Model Employment
Arbitration Procedures of the American Arbitration Association (including such
procedures governing selection of the specific arbitrator or arbitrators),
unless the parties mutually agree otherwise. Within 30 days of the selection of
the arbitrator, the Executive and the Company shall meet in Miami, Florida, with
the arbitrator at a place and time designated by the arbitrator after
consultation with the parties and present their respective positions on the
dispute. Each party shall
9
<PAGE>
have no longer than two (2) days to present its position and the entire
proceeding before the arbitrator shall be no more than five (5) consecutive days
in duration. The arbitrator's award, which may include attorneys' fees, shall be
rendered within ten (10) days following the completion of the proceedings. The
arbitrator's decision shall be in writing and shall state the reasoning on which
the award rests unless the parties agree otherwise. Florida law shall govern all
aspects of the relationship and the arbitration, including the applicable
statutes of limitation and excluding its rules concerning conflicts of law. The
Company shall pay the costs of any such arbitration. The award by the arbitrator
or arbitrators shall be final, and judgment may be entered upon it in accordance
with applicable law in any state or Federal court having jurisdiction thereof.
17. ATTORNEYS' FEES.
In the event that either party hereunder institutes any legal
proceedings in connection with its rights or obligations under this Agreement,
the prevailing party in such proceeding shall be entitled to recover from the
other party, all costs incurred in connection with such proceeding, including
reasonable attorneys' fees, together with interest thereon from the date of
demand at the rate of twelve percent (12%) per annum.
18. SUCCESSORS.
This Agreement and all rights of the Executive shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries. In
the event of the Executive's death, all amounts payable to the Executive under
this Agreement shall be paid to the Executive's surviving spouse, or the
Executive's estate if the Executive dies without a surviving spouse. This
Agreement shall inure to the benefit of, be binding upon and be enforceable by,
any successor surviving or resulting corporation or other entity to which all or
substantially all of the business and assets of the Company shall be transferred
whether by merger, consolidation, transfer or safe.
19. ENFORCEMENT.
The provisions of this Agreement shall be regarded as divisible, and if
any of said provisions or any part hereof are declared invalid or unenforceable
by a court of competent jurisdiction, the validity and enforceability of the
remainder of such provisions or parts hereof and the applicability thereof shall
not be affected thereby
20. AMENDMENT OR TERMINATION.
This Agreement may not be amended or terminated during its term as
specified above except by written instrument executed by the Company and the
Executive.
21. ENTIRE AGREEMENT.
This Agreement, in conjunction with the Executive's rights under any
general employee benefit program, sets forth the entire agreement between the
Executive and the Company with respect to the subject matter hereof, and
supersedes all prior oral or written agreements, negotiations, commitments and
understandings with respect thereto.
22. WITHHOLDING.
The Company shall be entitled to withhold from amounts to be paid to
the Executive under this Agreement any federal, state or local withholding or
other taxes or charges which it is from time to time required to withhold in
connection with this Agreement or in connection with any plan or arrangement in
which the Executive is a participant. The Executive shall also be required to
pay to the Company such amount of cash as shall be necessary to satisfy such
withholding or other taxes or charges to the extent that the amounts to be
withheld from the Executive under this Agreement are insufficient therefor. The
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<PAGE>
Company shall be entitled to rely on an opinion of counsel if any question as to
the amount or requirement of any such withholding shall arise.
23. VENUE; GOVERNING LAW.
This Agreement and the Executive's and Company's respective rights and
obligations hereunder shall be governed by and construed in accordance with the
laws of the State of Florida without giving effect to the provisions,
principles, or policies thereof relating to choice or conflict laws.
24. NOTICE.
Notices given pursuant to this Agreement shall be in writing and shall
be deemed given when received, and if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only, postage
prepaid, if to the Company, to:
InterAmericas Communications Corporation
1221 Brickell Avenue
Miami, Florida 33131
Or to such other address as the Company shall have given to the Executive or, if
to the Executive, to such address as the Executive shall have given to the
Company in writing.
25. NO WAIVER.
No waiver by either party at any time of any breach by the other party
OF, or compliance with, any condition or provision of this Agreement to BE
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or any prior or subsequent time.
26. HEADINGS.
The headings herein contained are for reference only and shall not
affect the meaning ~ interpretation of any provision of this Agreement.
27. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same instrument.
28. TERMINATION OF EXISTING EMPLOYMENT AGREEMENT.
Upon the Effective Date, the existing employment agreement between the
Company and the Executive shall terminate and shall be of no further force or
effect.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Executive has executed this
Agreement, on the date first above written.
INTERAMERICAS COMMUNICATIONS CORPORATION
/S/ DOUGLAS G. GEIB II
----------------------------------------
Douglas G. Geib II
Chief Financial Officer
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<PAGE>
On behalf of the Company as approved by the
Board of Directors of the Company on
September 9, 1997 and September 22, 1997,
and as also approved by the Compensation
Committee of the Board of Directors of the
Company
/S/ PATRICIO E. NORTHLAND
-------------------------
Patricio E. Northland
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<PAGE>
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the 9th
day of September, 1997 (the "Grant Date"), by and between INTERAMERICAS
COMMUNICATIONS CORPORATION (the "Grantor") and PATRICIO E. NORTHLAND (the
"Optionee").
W I T N E S S E T H:
WHEREAS, in consideration of prior services and services to be rendered
by the Optionee to the Grantor and certain promises made by the Optionee to the
Grantor, the Grantor desires to grant the Optionee an option to purchase SIX
HUNDRED THOUSAND (600,000) shares of Common Stock, par value $.001 per share
("Common Stock"), of the Grantor, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee a non-qualified stock
option (the "Option") (subject to Section 7 hereof) to purchase from the Grantor
SIX HUNDRED THOUSAND (600,000) shares of Common Stock (after the exercise of the
Option and the acquisition of the shares, the "Option Shares"), at the price of
$2.13 per whole share (the "Option Price").
SECTION 2. EXERCISE OF OPTION.
(a) VESTING SCHEDULE. The Option may be exercised in whole or
in part, in accordance with the following vesting schedule: (i) 1/3 of the
Option shall vest immediately upon the signing of this Agreement; (ii) 1/3 of
the Option shall vest one year after the signing of this Agreement, (iii) 1/3 of
the Option shall vest two years after the singing of this Agreement. The Option
shall expire on the tenth anniversary hereof (the "Expiration Date"), unless
sooner terminated as set forth herein,
(b) METHOD OF EXERCISE. The Option is exercisable by the
Optionee's delivering to the Grantor a written notice specifying the number of
the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. The Optionee shall be deemed
to be a holder of the Option Shares immediately upon, and to the extent of, the
exercise of this Option as set forth above.
(c) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, the Grantor shall cause one or
more stock certificates evidencing the Optionee's ownership of the Option Shares
to be issued to the Optionee. A legend in substantially the form set forth below
shall be placed upon each stock certificate representing the Option Shares:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
("Act"), or the securities laws of any state or other
jurisdiction, including the Florida Securities Act, and are
restricted securities as that term is defined under Rule 144
promulgated under the Act. These shares may not be sold,
transferred, pledged, hypothecated or otherwise disposed of in
any manner (a "Transfer") unless they are registered under the
Act and the securities laws of all applicable states and other
jurisdictions or unless the request for Transfer is
accompanied by a favorable opinion of
<PAGE>
counsel satisfactory to the issuer, stating that such Transfer
will not result in a violation of such laws."
SECTION 4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall at
any time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any reorganization of the Grantor or in case the Grantor shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise
expressly provided herein, the issuance by the Grantor of shares of its capital
stock of any class, or securities convertible into shares of capital stock of
any class, either in connection with the direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Grantor convertible into such shares or other securities,
shall not affect this Option, and no adjustment by reason thereof shall be made
with respect to the number of or exercise price of Option Shares then subject to
this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the
generality of the foregoing, the existence of this Option shall not affect in
any manner the right or power of the Grantor to approve or the Grantor to make,
authorize or consummate (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Grantor's capital structure or its
business; (ii) any merger or consolidation of the Grantor; (iii) any issuance by
the Grantor of debt securities, or preferred or preference stock that would rank
above the Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) IMMEDIATE EXERCISE OF OPTION. Unless otherwise provided
herein, each outstanding Option shall become immediately fully exercisable upon
the following:
(i) If there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company immediately
before such transaction cease to own at least 51 percent of the voting stock of
the Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) If the stockholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
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<PAGE>
(iii) If the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
SECTION 5. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner other than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
SECTION 6. TERMINATION OF OPTION. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date;
(b) The Option shall terminate three months after the
Optionee's termination of employment or ceases to be a director of the Company;
(c) If the Optionee dies before the Option terminates pursuant
to Section 6(a) or 6(b), above, the Option shall terminate on the earlier of (i)
the date on which the Option would have lapsed had the Optionee lived and had
his employment status (I.E., whether the Optionee was a employed on the date of
his death or had previously terminated employment) remained unchanged; or (ii)
15 months after the date of the Optionee's death. Upon the Optionee's death, any
exercisable Options may be exercised by the Optionee's legal representative or
representatives, by the person or persons entitled to do so under the Optionee's
last will and testament, or, if the Optionee shall fail to make testamentary
disposition of the Option or shall die intestate, by the person or persons
entitled to receive said Option under the applicable laws of descent and
distribution.
SECTION 7. APPROVAL OF STOCK OPTION PLAN. The Company intends, at its
next Annual Meeting of Stockholders (the "Annual Meeting"), to submit for
stockholder consideration and approval its 1997 Stock Option Plan (the "Plan").
In the event that the Plan is approved by the Company's stockholders, then this
Option shall be deemed to be an Incentive Stock Option (within the meaning of
the Internal Revenue Code of 1986, as amended, (the "Code") have been granted
under and pursuant to the Plan. If, however, the Plan is not so approved at the
Annual Meeting, then this Option shall be deemed to be a non-qualified stock
option (which means any option which is not an Incentive Stock Option under the
Code).
SECTION 8. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 9. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the Option
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Option Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or appropriate to
comply with the provisions of any securities law deemed by the Grantor to be
applicable to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
3
<PAGE>
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This Agreement may not be assigned in whole or
in part by the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
4
<PAGE>
IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
INTERAMERICAS COMMUNICATIONS
CORPORATION
By: /S/ DOUGLAS G. GEIB II
---------------------------
Name: Douglas G. Geib II
Title: Chief Financial Officer
OPTIONEE:
/S/ PATRICIO E. NORTHLAND
------------------------------
Patricio E. Northland
5
<PAGE>
EXHIBIT A
INTERAMERICAS COMMUNICATIONS CORPORATION
EXERCISE NOTICE
InterAmericas Communications Corporation
2600 Douglas Road, Suite 501
Coral Gables, Florida 33134
SECTION 1. EXERCISE OF OPTION. Effective as of today, _____________,
199__, the undersigned ("Purchaser") hereby elects to purchase __________ shares
(the "Shares") of the Common Stock of InterAmericas Communications Corporation
(the "Company") under and pursuant to the Stock Option Agreement dated
_______________ (the "Option Agreement"). The purchase price for the Shares
shall be as set forth in the Option Agreement, as adjusted.
SECTION 2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares (either in cash, certified or
official bank check or by money order).
SECTION 3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Option Agreement and agrees to
abide by and be bound by its terms and conditions.
SECTION 4. RIGHTS AS STOCKHOLDER. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of Shares so acquired shall be issued
to the Optionee as soon as practicable after exercise of the Option.
SECTION 5. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
SECTION 6. ENTIRE AGREEMENT. The Option Agreement is incorporated
herein by reference. This Exercise Notice and the Option Agreement constitute
the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: INTERAMERICAS COMMUNICATIONS
CORPORATION
By:_____________________________ By:_________________________
Name:_______________________
Title:______________________
ADDRESS:
6
<PAGE>
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the 9th
day of September, 1997 (the "Grant Date"), by and between INTERAMERICAS
COMMUNICATIONS CORPORATION (the "Grantor") and PATRICIO E. NORTHLAND (the
"Optionee").
W I T N E S S E T H:
WHEREAS, in consideration of prior services and services to be rendered
by the Optionee to the Grantor and certain promises made by the Optionee to the
Grantor, the Grantor desires to grant the Optionee an option to purchase ONE
HUNDRED THOUSAND (100,000) shares of Common Stock, par value $.001 per share
("Common Stock"), of the Grantor, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee a non-qualified stock
option (the "Option") (subject to Section 7 hereof) to purchase from the Grantor
ONE HUNDRED THOUSAND (100,000) shares of Common Stock (after the exercise of the
Option and the acquisition of the shares, the "Option Shares"), at the price of
$4.00 per whole share (the "Option Price").
SECTION 2. EXERCISE OF OPTION.
(a) The Option may be exercised in whole or in part at any
time commencing on the date hereof and ending on the tenth anniversary hereof
(the "Expiration Date"), unless sooner terminated as set forth herein, by the
Optionee's delivering to the Grantor a written notice specifying the number of
the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. The Optionee shall be deemed
to be a holder of the Option Shares immediately upon, and to the extent of, the
exercise of this Option as set forth above.
(b) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, the Grantor shall cause one or
more stock certificates evidencing the Optionee's ownership of the Option Shares
to be issued to the Optionee. A legend in substantially the form set forth below
shall be placed upon each stock certificate representing the Option Shares:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
("Act"), or the securities laws of any state or other
jurisdiction, including the Florida Securities Act, and are
restricted securities as that term is defined under Rule 144
promulgated under the Act. These shares may not be sold,
transferred, pledged, hypothecated or otherwise disposed of in
any manner (a "Transfer") unless they are registered under the
Act and the securities laws of all applicable states and other
jurisdictions or unless the request for Transfer is
accompanied by a favorable opinion of counsel satisfactory to
the issuer, stating that such Transfer will not result in a
violation of such laws."
<PAGE>
SECTION 4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall at
any time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any reorganization of the Grantor or in case the Grantor shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise
expressly provided herein, the issuance by the Grantor of shares of its capital
stock of any class, or securities convertible into shares of capital stock of
any class, either in connection with the direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Grantor convertible into such shares or other securities,
shall not affect this Option, and no adjustment by reason thereof shall be made
with respect to the number of or exercise price of Option Shares then subject to
this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the
generality of the foregoing, the existence of this Option shall not affect in
any manner the right or power of the Grantor to approve or the Grantor to make,
authorize or consummate (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Grantor's capital structure or its
business; (ii) any merger or consolidation of the Grantor; (iii) any issuance by
the Grantor of debt securities, or preferred or preference stock that would rank
above the Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) IMMEDIATE EXERCISE OF OPTION. Unless otherwise provided
herein, each outstanding Option shall become immediately fully exercisable upon
the following:
(i) If there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company immediately
before such transaction cease to own at least 51 percent of the voting stock of
the Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) If the stockholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
(iii) If the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
2
<PAGE>
SECTION 5. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner other than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
SECTION 6. TERMINATION OF OPTION. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date;
(b) The Option shall terminate three months after the
Optionee's termination of employment or ceases to be a director of the Company;
(c) If the Optionee dies before the Option terminates pursuant
to Section 6(a) or 6(b), above, the Option shall terminate on the earlier of (i)
the date on which the Option would have lapsed had the Optionee lived and had
his employment status (I.E., whether the Optionee was a employed on the date of
his death or had previously terminated employment) remained unchanged; or (ii)
15 months after the date of the Optionee's death. Upon the Optionee's death, any
exercisable Options may be exercised by the Optionee's legal representative or
representatives, by the person or persons entitled to do so under the Optionee's
last will and testament, or, if the Optionee shall fail to make testamentary
disposition of the Option or shall die intestate, by the person or persons
entitled to receive said Option under the applicable laws of descent and
distribution.
SECTION 7. APPROVAL OF STOCK OPTION PLAN. The Company intends, at its
next Annual Meeting of Stockholders (the "Annual Meeting"), to submit for
stockholder consideration and approval its 1997 Stock Option Plan (the "Plan").
In the event that the Plan is approved by the Company's stockholders, then this
Option shall be deemed to be an Incentive Stock Option (within the meaning of
the Internal Revenue Code of 1986, as amended, (the "Code") have been granted
under and pursuant to the Plan. If, however, the Plan is not so approved at the
Annual Meeting, then this Option shall be deemed to be a non-qualified stock
option (which means any option which is not an Incentive Stock Option under the
Code).
SECTION 8. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 9. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the Option
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Option Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or appropriate to
comply with the provisions of any securities law deemed by the Grantor to be
applicable to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
3
<PAGE>
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This Agreement may not be assigned in whole or
in part by the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
4
<PAGE>
IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
INTERAMERICAS COMMUNICATIONS
CORPORATION
By: /S/ DOUGLAS G. GEIB II
---------------------------
Name: Douglas G. Geib II
Title: Chief Financial Officer
OPTIONEE:
/S/ PATRICIO E. NORTHLAND
------------------------------
Patricio E. Northland
5
<PAGE>
EXHIBIT A
INTERAMERICAS COMMUNICATIONS CORPORATION
EXERCISE NOTICE
InterAmericas Communications Corporation
2600 Douglas Road, Suite 501
Coral Gables, Florida 33134
SECTION 1. EXERCISE OF OPTION. Effective as of today, _____________,
199__, the undersigned ("Purchaser") hereby elects to purchase __________ shares
(the "Shares") of the Common Stock of InterAmericas Communications Corporation
(the "Company") under and pursuant to the Stock Option Agreement dated
_______________ (the "Option Agreement"). The purchase price for the Shares
shall be as set forth in the Option Agreement, as adjusted.
SECTION 2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares (either in cash, certified or
official bank check or by money order).
SECTION 3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Option Agreement and agrees to
abide by and be bound by its terms and conditions.
SECTION 4. RIGHTS AS STOCKHOLDER. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of Shares so acquired shall be issued
to the Optionee as soon as practicable after exercise of the Option.
SECTION 5. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
SECTION 6. ENTIRE AGREEMENT. The Option Agreement is incorporated
herein by reference. This Exercise Notice and the Option Agreement constitute
the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: INTERAMERICAS COMMUNICATIONS
CORPORATION
By: By:
-------------------------- -----------------------
Name: Douglas G. Geib II
Title:Chief Financial Officer
ADDRESS:
_____________________________
6
<PAGE>
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the 9th
day of September, 1997 (the "Grant Date"), by and between INTERAMERICAS
COMMUNICATIONS CORPORATION (the "Grantor") and PATRICIO E. NORTHLAND (the
"Optionee").
W I T N E S S E T H:
WHEREAS, in consideration of prior services and services to be rendered
by the Optionee to the Grantor and certain promises made by the Optionee to the
Grantor, the Grantor desires to grant the Optionee an option to purchase ONE
HUNDRED THOUSAND (100,000) shares of Common Stock, par value $.001 per share
("Common Stock"), of the Grantor, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee a non-qualified stock
option (the "Option") (subject to Section 7 hereof) to purchase from the Grantor
ONE HUNDRED THOUSAND (100,000) shares of Common Stock (after the exercise of the
Option and the acquisition of the shares, the "Option Shares"), at the price of
$6.00 per whole share (the "Option Price").
SECTION 2. EXERCISE OF OPTION.
(a) The Option may be exercised in whole or in part at any
time commencing on October 7, 1998 and ending on the tenth anniversary hereof
(the "Expiration Date"), unless sooner terminated as set forth herein, by the
Optionee's delivering to the Grantor a written notice specifying the number of
the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. The Optionee shall be deemed
to be a holder of the Option Shares immediately upon, and to the extent of, the
exercise of this Option as set forth above.
(b) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, the Grantor shall cause one or
more stock certificates evidencing the Optionee's ownership of the Option Shares
to be issued to the Optionee. A legend in substantially the form set forth below
shall be placed upon each stock certificate representing the Option Shares:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
("Act"), or the securities laws of any state or other
jurisdiction, including the Florida Securities Act, and are
restricted securities as that term is defined under Rule 144
promulgated under the Act. These shares may not be sold,
transferred, pledged, hypothecated or otherwise disposed of in
any manner (a "Transfer") unless they are registered under the
Act and the securities laws of all applicable states and other
jurisdictions or unless the request for Transfer is
accompanied by a favorable opinion of counsel satisfactory to
the issuer, stating that such Transfer will not result in a
violation of such laws."
<PAGE>
SECTION 4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall at
any time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any reorganization of the Grantor or in case the Grantor shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise
expressly provided herein, the issuance by the Grantor of shares of its capital
stock of any class, or securities convertible into shares of capital stock of
any class, either in connection with the direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Grantor convertible into such shares or other securities,
shall not affect this Option, and no adjustment by reason thereof shall be made
with respect to the number of or exercise price of Option Shares then subject to
this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the
generality of the foregoing, the existence of this Option shall not affect in
any manner the right or power of the Grantor to approve or the Grantor to make,
authorize or consummate (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Grantor's capital structure or its
business; (ii) any merger or consolidation of the Grantor; (iii) any issuance by
the Grantor of debt securities, or preferred or preference stock that would rank
above the Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) IMMEDIATE EXERCISE OF OPTION. Unless otherwise provided
herein, each outstanding Option shall become immediately fully exercisable upon
the following:
(i) If there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company immediately
before such transaction cease to own at least 51 percent of the voting stock of
the Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) If the stockholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
(iii) If the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
2
<PAGE>
SECTION 5. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner other than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
SECTION 6. TERMINATION OF OPTION. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date;
(b) The Option shall terminate three months after the
Optionee's termination of employment or ceases to be a director of the Company;
(c) If the Optionee dies before the Option terminates pursuant
to Section 6(a) or 6(b), above, the Option shall terminate on the earlier of (i)
the date on which the Option would have lapsed had the Optionee lived and had
his employment status (I.E., whether the Optionee was a employed on the date of
his death or had previously terminated employment) remained unchanged; or (ii)
15 months after the date of the Optionee's death. Upon the Optionee's death, any
exercisable Options may be exercised by the Optionee's legal representative or
representatives, by the person or persons entitled to do so under the Optionee's
last will and testament, or, if the Optionee shall fail to make testamentary
disposition of the Option or shall die intestate, by the person or persons
entitled to receive said Option under the applicable laws of descent and
distribution.
SECTION 7. APPROVAL OF STOCK OPTION PLAN. The Company intends, at its
next Annual Meeting of Stockholders (the "Annual Meeting"), to submit for
stockholder consideration and approval its 1997 Stock Option Plan (the "Plan").
In the event that the Plan is approved by the Company's stockholders, then this
Option shall be deemed to be an Incentive Stock Option (within the meaning of
the Internal Revenue Code of 1986, as amended, (the "Code") have been granted
under and pursuant to the Plan. If, however, the Plan is not so approved at the
Annual Meeting, then this Option shall be deemed to be a non-qualified stock
option (which means any option which is not an Incentive Stock Option under the
Code).
SECTION 8. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 9. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the Option
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Option Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or appropriate to
comply with the provisions of any securities law deemed by the Grantor to be
applicable to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
3
<PAGE>
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This Agreement may not be assigned in whole or
in part by the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
4
<PAGE>
IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
INTERAMERICAS COMMUNICATIONS
CORPORATION
By: /S/ DOUGLAS G. GEIB II
--------------------------
Name: Douglas G. Geib II
Title: Chief Financial Officer
OPTIONEE:
/S/ PATRICIO E. NORTHLAND
------------------------------
Patricio E. Northland
5
<PAGE>
EXHIBIT A
INTERAMERICAS COMMUNICATIONS CORPORATION
EXERCISE NOTICE
InterAmericas Communications Corporation
2600 Douglas Road, Suite 501
Coral Gables, Florida 33134
SECTION 1. EXERCISE OF OPTION. Effective as of today, _____________,
199__, the undersigned ("Purchaser") hereby elects to purchase __________ shares
(the "Shares") of the Common Stock of InterAmericas Communications Corporation
(the "Company") under and pursuant to the Stock Option Agreement dated
_______________ (the "Option Agreement"). The purchase price for the Shares
shall be as set forth in the Option Agreement, as adjusted.
SECTION 2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares (either in cash, certified or
official bank check or by money order).
SECTION 3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Option Agreement and agrees to
abide by and be bound by its terms and conditions.
SECTION 4. RIGHTS AS STOCKHOLDER. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of Shares so acquired shall be issued
to the Optionee as soon as practicable after exercise of the Option.
SECTION 5. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
SECTION 6. ENTIRE AGREEMENT. The Option Agreement is incorporated
herein by reference. This Exercise Notice and the Option Agreement constitute
the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: INTERAMERICAS COMMUNICATIONS
CORPORATION
By: By:
-------------------------- -------------------------
Name: Douglas G. Geib II
Title:Chief Financial Officer
ADDRESS:
______________________________
6
<PAGE>
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the 9th
day of September, 1997 (the "Grant Date"), by and between INTERAMERICAS
COMMUNICATIONS CORPORATION (the "Grantor") and PATRICIO E. NORTHLAND (the
"Optionee").
W I T N E S S E T H:
WHEREAS, in consideration of prior services and services to be rendered
by the Optionee to the Grantor and certain promises made by the Optionee to the
Grantor, the Grantor desires to grant the Optionee an option to purchase ONE
HUNDRED THOUSAND (100,000) shares of Common Stock, par value $.001 per share
("Common Stock"), of the Grantor, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee a non-qualified stock
option (the "Option") (subject to Section 7 hereof) to purchase from the Grantor
ONE HUNDRED THOUSAND (100,000) shares of Common Stock (after the exercise of the
Option and the acquisition of the shares, the "Option Shares"), at the price of
$8.00 per whole share (the "Option Price").
SECTION 2. EXERCISE OF OPTION.
(a) The Option may be exercised in whole or in part at any
time commencing on October 7, 1999 and ending on the tenth anniversary hereof
(the "Expiration Date"), unless sooner terminated as set forth herein, by the
Optionee's delivering to the Grantor a written notice specifying the number of
the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. The Optionee shall be deemed
to be a holder of the Option Shares immediately upon, and to the extent of, the
exercise of this Option as set forth above.
(b) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, the Grantor shall cause one or
more stock certificates evidencing the Optionee's ownership of the Option Shares
to be issued to the Optionee. A legend in substantially the form set forth below
shall be placed upon each stock certificate representing the Option Shares:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
("Act"), or the securities laws of any state or other
jurisdiction, including the Florida Securities Act, and are
restricted securities as that term is defined under Rule 144
promulgated under the Act. These shares may not be sold,
transferred, pledged, hypothecated or otherwise disposed of in
any manner (a "Transfer") unless they are registered under the
Act and the securities laws of all applicable states and other
jurisdictions or unless the request for Transfer is
accompanied by a favorable opinion of counsel satisfactory to
the issuer, stating that such Transfer will not result in a
violation of such laws."
<PAGE>
SECTION 4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall at
any time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any reorganization of the Grantor or in case the Grantor shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise
expressly provided herein, the issuance by the Grantor of shares of its capital
stock of any class, or securities convertible into shares of capital stock of
any class, either in connection with the direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Grantor convertible into such shares or other securities,
shall not affect this Option, and no adjustment by reason thereof shall be made
with respect to the number of or exercise price of Option Shares then subject to
this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the
generality of the foregoing, the existence of this Option shall not affect in
any manner the right or power of the Grantor to approve or the Grantor to make,
authorize or consummate (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Grantor's capital structure or its
business; (ii) any merger or consolidation of the Grantor; (iii) any issuance by
the Grantor of debt securities, or preferred or preference stock that would rank
above the Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) IMMEDIATE EXERCISE OF OPTION. Unless otherwise provided
herein, each outstanding Option shall become immediately fully exercisable upon
the following:
(i) If there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company immediately
before such transaction cease to own at least 51 percent of the voting stock of
the Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) If the stockholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
(iii) If the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
2
<PAGE>
SECTION 5. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner other than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
SECTION 6. TERMINATION OF OPTION. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date;
(b) The Option shall terminate three months after the
Optionee's termination of employment or ceases to be a director of the Company;
(c) If the Optionee dies before the Option terminates pursuant
to Section 6(a) or 6(b), above, the Option shall terminate on the earlier of (i)
the date on which the Option would have lapsed had the Optionee lived and had
his employment status (I.E., whether the Optionee was a employed on the date of
his death or had previously terminated employment) remained unchanged; or (ii)
15 months after the date of the Optionee's death. Upon the Optionee's death, any
exercisable Options may be exercised by the Optionee's legal representative or
representatives, by the person or persons entitled to do so under the Optionee's
last will and testament, or, if the Optionee shall fail to make testamentary
disposition of the Option or shall die intestate, by the person or persons
entitled to receive said Option under the applicable laws of descent and
distribution.
SECTION 7. APPROVAL OF STOCK OPTION PLAN. The Company intends, at its
next Annual Meeting of Stockholders (the "Annual Meeting"), to submit for
stockholder consideration and approval its 1997 Stock Option Plan (the "Plan").
In the event that the Plan is approved by the Company's stockholders, then this
Option shall be deemed to be an Incentive Stock Option (within the meaning of
the Internal Revenue Code of 1986, as amended, (the "Code") have been granted
under and pursuant to the Plan. If, however, the Plan is not so approved at the
Annual Meeting, then this Option shall be deemed to be a non-qualified stock
option (which means any option which is not an Incentive Stock Option under the
Code).
SECTION 8. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 9. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the Option
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Option Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or appropriate to
comply with the provisions of any securities law deemed by the Grantor to be
applicable to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
3
<PAGE>
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This Agreement may not be assigned in whole or
in part by the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
4
<PAGE>
IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
INTERAMERICAS COMMUNICATIONS
CORPORATION
By:/S/ DOUGLAS G. GEIB II
---------------------------
Name: Douglas G. Geib II
Title: Chief Financial Officer
OPTIONEE:
/S/ PATRICIO E. NORTHLAND
------------------------------
Patricio E. Northland
5
<PAGE>
EXHIBIT A
INTERAMERICAS COMMUNICATIONS CORPORATION
EXERCISE NOTICE
InterAmericas Communications Corporation
2600 Douglas Road, Suite 501
Coral Gables, Florida 33134
SECTION 1. EXERCISE OF OPTION. Effective as of today, _____________,
199__, the undersigned ("Purchaser") hereby elects to purchase __________ shares
(the "Shares") of the Common Stock of InterAmericas Communications Corporation
(the "Company") under and pursuant to the Stock Option Agreement dated
_______________ (the "Option Agreement"). The purchase price for the Shares
shall be as set forth in the Option Agreement, as adjusted.
SECTION 2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares (either in cash, certified or
official bank check or by money order).
SECTION 3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Option Agreement and agrees to
abide by and be bound by its terms and conditions.
SECTION 4. RIGHTS AS STOCKHOLDER. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of Shares so acquired shall be issued
to the Optionee as soon as practicable after exercise of the Option.
SECTION 5. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
SECTION 6. ENTIRE AGREEMENT. The Option Agreement is incorporated
herein by reference. This Exercise Notice and the Option Agreement constitute
the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: INTERAMERICAS COMMUNICATIONS
CORPORATION
By: By:
-------------------------- -------------------------
Name: Douglas G. Geib II
Title:Chief Financial Officer
ADDRESS:
_____________________________
5
EXHIBIT 10.2
EXECUTIVE EMPLOYMENT
AND SEVERANCE AGREEMENT
THIS EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT (the "AGREEMENT") is
executed as of the 14th day of April, 1997, by and between InterAmericas
Communications Corporation, a Texas corporation (hereinafter referred to as the
"COMPANY"), and Douglas G. Geib II (hereinafter referred as the "EXECUTIVE").
WITNESSETH:
WHEREAS, the Company desires to have the benefit of the Executive's
efforts and services:
WHEREAS, the Executive is willing to commit himself to serve the
Company, on the terms and conditions herein provided; and,
WHEREAS, in order to effect the foregoing, the Company and the
Executive wish to enter into an employment agreement on the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto mutually
covenant and agree a follows:
1. DEFINITIONS.
Whenever used in this Agreement, the following terms shall have the
meanings set forth below:
(a) "ACCRUED BENEFITS" shall mean the amount payable not later
than ten (10) days following any applicable date of termination of the
Executive's employment with the Company pursuant to this Agreement (the
"Termination Date") and which shall be equal to the sum of the following
amounts:
(i) All salary earned or accrued through the
Termination Date;
(ii) Reimbursement for any and all monies advanced in
connection with the Executive's employment for reasonable and
necessary expenses incurred by the Executive through the
Termination Date;
(iii) Any and all other cash benefits previously
earned through the Termination Date and deferred at the
election of the Executive or pursuant to any deferred
compensation plans then in effect;
(iv) The full amount of any Bonus (as defined in
Section 6(b)) earned by the Executive in the year preceding
the year in which the termination occurs but not paid as of
the Termination Date and the amount of any Bonus payable to
the Executive in accordance with Section 6(b) herein as of the
Termination Date with respect to the year in which termination
occurs, pro rated to reflect the portion of the year in which
such termination occurs during which the Executive was
employed by the Company.
(v) All stock options which have vested or will vest
on or prior to the Termination Date; and
(vi) All other payments and benefits to which the
Executive may be entitled as of the Termination Date under the
terms of this Agreement (including Sections 6(c)-6(e) hereof),
pro rated to reflect the portion of the year in which such
termination occurs during which the Executive was employed by
the Company.
<PAGE>
(b) "ACT" shall mean the Securities Exchange Act of 1934;
(c) "BENEFICIAL OWNER" shall have the same meaning as given to
that term in Rule 13d-3 of the General Rules and Regulations of the
Act, provided that any pledgee of Company voting securities shall not
be deemed to be the Beneficial Owner thereof prior to its disposition
of, or acquisition of voting rights with respect to, such securities;
(d) "BOARD" shall mean the Board of Directors of the Company;
(e) "CAUSE" shall mean any of the following:
(i) The engaging by the Executive in fraudulent
conduct, as evidenced by a judgment, order or decree of a
court or administrative agency of competent jurisdiction, in
an action, suit or proceeding, whether civil, criminal,
administrative or investigative, which the Board reasonably
determines has or would have a material adverse impact on the
Company in the conduct of the Company's business;
(ii) Conviction of the Executive of a felony criminal
offense, as evidenced by a binding judgment, order or decree
of a court of competent jurisdiction, which the Board
reasonably determines has or could have a material adverse
impact on the Company in the conduct of the Company's
business;
(iii) Willful refusal by the Executive to perform the
Executive's material duties or responsibilities as reasonably
requested by the Company's Chief Executive Officer (the "CEO")
(unless significantly changed without the Executive's
consent); or
(iv) Gross Negligence by the Executive in performing
the Executive's material duties or responsibilities as
reasonably requested by the CEO (unless significantly changed
without the Executive's consent) Notwithstanding the
foregoing, Cause shall not exist under Sections 1 (e)(iii) or
(iv) herein unless the Company furnishes written notice to the
Executive of the specific offending conduct and the Executive
fails to correct such offending conduct within the fifteen
(15) day period commencing on the receipt of such notice.
(f) "CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time;
(g) "EFFECTIVE DATE" shall mean May 1, 1997 notwithstanding
the date that this Agreement is executed by the parties hereto.
(h) "GOOD REASON" shall mean:
(i) The required relocation of the Executive, without
the Executive's consent, to an employment location which is
more than seventy-five (75) miles from the Executive's
employment location on the day preceding the date of this
Agreement;
(ii) Any reduction by the Company in the compensation
and/or benefits (including Bonus) provided to the Executive as
in effect on the Effective Date as the same may be increased
from time to time after the Effective Date (other than a
one-time reduction of twenty-five percent (25%) or less in the
compensation and/or benefits which reduction is generally
effective for the CEO.
2
<PAGE>
(iii) The removal of the Executive from or any
failure to elect the Executive to any of the positions to be
held by the Executive pursuant to this Agreement except in the
event that such removal or failure to reelect is related to
termination by the Company of the Executives employment for
Cause or by reason of death, Disability (as hereinafter
defined) or voluntary retirement;
(iv) Breach or violation of any material provision of
this Agreement by the Company;
(v) If Patricio Northland fails to be employed by as
CEO of Company at any time during the Employment Term other
than upon expiration of Mr. Northland's employment agreement
with the Company;
(vi) The assignment to the Executive of duties,
responsibilities or authority that is materially inconsistent
with Sections 4(a) and 4(b) hereof; or
(vii) A material breach by the Company of the
representation or warranty of the Company set forth in
Sections 6(e) hereof.
(i) "NOTICE OF TERMINATION" shall mean the notice described in
Section 14 herein;
(j) "PERSON" shall mean any individual, partnership, joint
venture, association, trust, corporation or other entity (including a
"group" as defined in Section 13 (d)(3) of the Act), other than an
employee benefit plan of the Company or an entity organized, appointed
or established pursuant to the terms of any such benefit plan;
(k) "TERMINATION PAYMENT" shall mean the payment described in
Section 13 herein;
2. EMPLOYMENT. The Company hereby agrees to employ the Executive and
the Executive hereby agrees to serve the Company, on the terms and conditions
set forth herein.
3. TERM. The employment of the Executive by the Company pursuant to the
provisions of this Agreement shall commence on the Effective Date and end on
April 30, 2000. Such period is hereinafter defined as the "Employment Term."
4. POSITIONS AND DUTIES.
(a) The Executive shall serve as Chief Financial Officer and
as a member of the Board of Directors of the Company. In connection
with the foregoing positions, the Executive shall have such duties,
responsibilities and authority as may from time to time be assigned to
the Executive by the Board or the CEO, provided such duties,
responsibilities and authority are of a nature customarily assigned to
directors and chief financial officers of companies similar in size and
structure to the Company. The Executive shall devote substantially all
the Executive's working time and reasonable efforts to the business and
affairs of the Company.
(b) The Executive's duties shall include, but not be limited
to, the following:
(i) Recommend to the CEO the approval of budgets,
cash flow plans and schedules and any amendments thereto of
the Company and its affiliates and subsidiaries;
(ii) Recommend to the CEO the appointment of the
independent public accountants of the Company;
3
<PAGE>
(iii) Assist the CEO in the preparation and filing of
all reports, returns and notices required to be filed by the
Company;
(iv) Use his reasonable efforts to obtain financing
for the operations and expansion of the Company;
(v) Assist the Company's legal counsel in connection
with the preparation of filings required to be made by the
Company with the U.S. Securities and Exchange Commission;
(vi) Assist the CEO in the due diligence review of
companies sought to be acquired by the Company;
(vii) Assist the CEO in expanding, improving and
enhancing investor relations;
(viii) Supervise and direct the financial and
accounting activities of the Company and of the operating
subsidiaries and affiliates of the Company;
(ix) establish fully integrated accounting and
financial control systems for the Company, its operating
subsidiaries and affiliates; and
(x) Subject to Section 4(a) hereof, take any other
action that may be reasonably requested by the Board of
Directors or by the CEO of the Company.
(c) The Executive shall report to the CEO of the Company.
5. PLACE OF PERFORMANCE. In connection with the Executive's employment
by the Company, the Executive shall be based in Miami, Florida, except for
required travel on Company business. The Company hereby acknowledges that the
Executive presently resides in Brecksville, Ohio, and agrees that between the
date of this Agreement and the date that the Executive permanently relocates his
family to Miami, Florida, the Company will pay all costs and expenses reasonably
incurred by the Executive and his wife and children in traveling between
Brecksville, Ohio, and Miami, Florida, including, without limitation, costs of
transportation, meals and lodging. The Company further agrees to reimburse for
all costs and expenses reasonably incurred by the Executive in moving from
Brecksville, Ohio to Miami, Florida, including, without limitation,
(a) all brokerage fees related to the sale and/or rental of
Executive's Brecksville, Ohio, residence and to the purchase and/or
rental of a Miami, Florida, residence,
(b) costs and expenses (including transportation, meals and
lodging) incurred by the Executive and his immediate family in
connection with house hunting trips, and
(c) costs and expenses relating to packing and transporting
goods and personal belongings from Brecksville, Ohio, to Miami,
Florida, such costs and expenses to be reimbursed by the Company within
seven days of presentment by the Executive to the Company of receipts
evidencing such costs and expenses. Notwithstanding the foregoing, in
no event shall the costs and expenses incurred by the Executive and his
immediate family pursuant to this Section 5 exceed $40,000 without the
prior written consent of the CEO.
6. COMPENSATION AND RELATED MATTERS. During the Employment Term, the
Company shall pay or provide to the Executive the following compensation and
other benefits:
(a) Commencing on the date hereof, the Company shall pay to
the Executive an annualized base salary at a rate of $250,000 (Two
Hundred and Fifty Thousand U.S. Dollars) in equal installments as
nearly as practicable on the fifteenth and last days of each month, in
arrears. Commencing May 1, 1998, and each May 1, thereafter during the
Employment Term,
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<PAGE>
the Base Salary shall be increased, but shall not be decreased, by that
percentage by which the Consumer Price Index (All Items Less Shelter),
Urban Wage Earners and Clerical Workers, for the Miami, Florida area
published by the United States Government (the "Index") for the
immediately preceding calendar year exceeds such index for the next
preceding calendar year. If publication of the Index is discontinued,
the parties hereto shall accept comparable statistics on the cost of
living for the Miami, Florida area as computed and published by an
agency of the United States government or, if no such agency computes
and publishes such statistics, by any regularly published national
financial periodical that does compute and publish such statistics. The
Executive's base salary may be increased above the foregoing amounts at
the discretion of the Board of Directors.
(b) Performance awards. The Executive shall be entitled to
receive an annual performance award (a "Bonus"), as determined by the
CEO in his reasonable discretion, not to exceed Two Hundred Fifty
Thousand Dollars ($250,000), based upon the fulfillment of the
Executive's duties as specified in Section 4(b) hereof. Any Bonus
earned by the Executive pursuant to this Section 6(b) shall be paid to
the Executive by March 31 of each year based on the performance of the
Executive during the preceding year and shall be prorated for any
partial years of employment.
(c) During the Employment Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in performing services hereunder, including,
but not limited to, all expenses of travel, entertainment and living
expenses while away from home on business or at the request of and in
the service of the Company, provided that such expenses are incurred
and accounted for in accordance with the policies and procedures
presently established by the Company;
(d) The Executive hereby is granted an option (the "Option")
to purchase 500,000 shares of the Company's common stock at an exercise
price equal to the average closing price of the Company's Common Stock
on the Nasdaq SmallCap Market for the five consecutive trading days
ending on April 17, 1997. The Option may be exercised, in whole or in
part, subject to the following sentence, in accordance with the
following vesting schedule:
(i) 1/3 of the Option shall vest immediately upon the
signing this Agreement,
(ii) 1/3 of the Option shall vest one year after the
signing of this Agreement,
(iii) 1/3 of the Option shall vest two years after
the signing of this Agreement. The Option shall expire ten
(10) years from the date hereof (the "EXPIRATION DATE"), and
must be exercised, if at all, in whole or in part, on or
before the Expiration Date; PROVIDED HOWEVER, that upon the
termination of the Executive's employment hereunder for Cause,
Disability or death or upon the Executive's voluntary
resignation as an employee of the Company prior to the
expiration of the Employment Term for any reason other than
Good Reasons, any portion of the Option which has not vested
prior to such termination or resignation shall be cancelled
and shall no longer be exercisable; and PROVIDED FURTHER, that
the entire Option shall vest on (a) upon the termination of
the Executive's employment for any reason other than "Cause"
Disability or death, and (b) upon the voluntary termination of
employment be Executive for "Good Reason". The Option
Agreement will be in substantially the form of Exhibit "1"
attached hereto
(e) Stock Option and Registration Rights: Simultaneously with
the execution of this Agreement, the Company agrees to execute and
deliver to the Executive the Stock Option Agreement and the
Registration Rights Agreement in the forms attached hereto as Exhibits
1 and 2, respectively. The Company hereby represents and warrants that,
except for the number of shares subject to the attached agreements and
the exercise price relating thereto, the terms of
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the Stock Option Agreement and the Registration Rights Agreement
attached hereto are the same as the terms of the Stock Option Agreement
and the Registration Rights Agreement entered into between the Company
and Patricio Northland.
(f) The Executive shall be entitled to four weeks vacation in
each calendar year, and to compensation in respect of earned but unused
vacation days, determined in accordance with the Company's vacation
plan or policy. The Executive shall also be entitled to all paid
holidays provided by the Company to its executive officers;
(g) The Company shall furnish the Executive with office space,
and such other facilities and services as shall be suitable to the
Executive's position and adequate for the performance of the
Executive's duties as set forth in Section 4 herein.
(h) The Executive shall be provided with major medical,
hospitalization, and dental insurance; disability insurance; term life
insurance equal to one year's salary; and other benefits upon terms and
conditions similar to those provided to the Company's other executive
officers.
(i) The Executive shall be provided a car allowance not to
exceed $600 per month.
7. OFFICES. The Executive agrees to serve without additional
compensation, if elected or appointed thereto, as a member of the Board of
Directors or any subsidiary of the Company; provided, however, that the
Executive shall be indemnified for serving in any and all such capacities on a
basis no less favorable than is currently provided in the Company's bylaws.
8. TERMINATION AS A RESULT OF DEATH. If the Executive shall die during
the term of this Agreement, the Executive's employment shall terminate on the
Executive's date of death and the Executive's surviving spouse, or the
Executive's estate if the Executive dies without a surviving spouse, shall be
entitled to the applicable Termination Payment as defined in Section 13(a) and
all Accrued Benefits.
9. TERMINATION FOR DISABILITY. If, as a result of physical or mental
disability, the Executive shall have been unable to perform the Executive's
duties hereunder on a full-time basis for ninety consecutive days or 180 days in
any 360 day period (a "Disability"), the Company may terminate the Executive's
employment subject to Section 14 herein. During the term of the Executive's
Disability prior to termination, the Executive shall continue to receive all
salary and benefits payable under Section 6 herein, including participation in
all employee benefit plans, programs and arrangements in which the Executive was
entitled to participate immediately prior to the terms and provisions of such
plans, programs, and arrangements. In the event that the Executive's
participation in any such plan, program or arrangement is barred as the result
of such Disability, the Executive shall be entitled to receive an amount equal
to the contributions, payments, credits or allocations which would have been
paid by the Company to the Executive, to the Executive's account or on the
Executive's behalf under such plans, programs and arrangements. In the event the
Executive's employment is terminated on account of the Executive's Disability in
accordance with this Section 9, the Executive shall receive the Executive's
Accrued Benefits as of the Termination Date and shall remain eligible for all
benefits provided by any long-term disability programs of the Company in effect
at the time of such termination. Upon termination for Disability, the Executive
shall be entitled to the Termination Payment as defined in Section 13(a) and all
Accrued Benefits.
10. TERMINATION FOR CAUSE. If the Executive's employment with the
Company is terminated by the Company for Cause, subject to the procedures set
forth in Section 14 herein, the Executive shall not be entitled to receipt of
any Termination Payment, but shall be entitled to receive all Accrued Benefits
(other than any prorated Bonus pursuant to Section 6(b) hereof).
11. OTHER TERMINATION BY COMPANY OR BY THE EXECUTIVE. If the
Executive's employment with the Company is terminated by the Company other than
by reason or death, Disability or
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Cause, or if the Executive terminates his employment with the Company for Good
Reason, subject to the procedures set forth in Section 14 herein, the Executive
(or in the event of the Executive's death following the Termination Date, the
Executive's surviving spouse or the Executive's estate if the Executive dies
without a surviving spouse) shall receive the applicable Termination Payment as
defined in Section 13(b) and the Accrued Benefits.
12. VOLUNTARY TERMINATION BY EXECUTIVE. Provided that the Executive
furnishes thirty (30) days prior written notice to the Company, the Executive
shall have the right to voluntarily terminate this Agreement at any time. If the
Executive's voluntary termination is without Good Reason, the Executive shall
receive the Executive's Accrued Benefits as of the Termination Date (other than
any prorated Bonus pursuant to Section 6(b) hereof) and shall not be entitled to
any Termination Payment.
13. TERMINATION PAYMENT.
(a) If the Executive's employment is terminated as a result of
death or Disability, the lump sum Termination Payment payable to the
Executive shall be equal to 100% of the Executive's then current annual
base salary;
(b) If the Executive's employment is terminated by the
Executive for Good Reason or by the Company for any reason other than
death, Disability or Cause, the lump sum Termination Payment payable to
the Executive shall be equal to the greater of (i) 100% of the
Executive's then current annual base salary or (ii) the aggregate
amount of base salary to be paid to the Executive for the remainder of
the Employment Term.
(c) If any portion of the Termination Payment is determined to
constitute a "parachute payment" (as defined in Section 280G of the
Code), the Executive hereby agrees to pay any excise tax imposed on
such portion of the Termination Payment by Section 4999 of the Code and
the Company hereby acknowledges and agrees that such portion of the
Termination Payment will not be deductible to the Company pursuant to
Section 280G of the Code.
(d) The Termination Payment shall be payable in a lump sum not
later than ten (10) days following the Executive's Termination Date.
Such lump sum payment shall not be reduced by any present value or
similar factor. Further, the Executive shall not be required to
mitigate the amount of such payment by securing other employment or
otherwise and such payment shall not be reduced by reason of the
Executive securing other employment or for any other reason.
14. TERMINATION NOTICE AND PROCEDURE. Any termination by the Company or
the Executive of the Executive's employment during the Employment Term shall be
communicated by written Notice of Termination to the Executive if such Notice of
Termination is delivered by the Company and to the Company if such Notice of
Termination is delivered by the Executive, all in accordance with the following
procedures:
(a) The Notice of Termination shall indicate the specific
termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances alleged to provide a
basis for termination. In the event of a termination claimed by the
Company pursuant to Section 1(e)(iii) or (iv) hereof and the Executive
notifies the Company that a dispute exists concerning the termination
within the fifteen (15) day period following cure period specified in
Section 1 hereof, the Executive shall continue to receive 50% of the
Executive's base salary and all other benefits to which he is entitled
to receive hereunder until the earlier of (i) 60 days following such
termination or (ii) resolution of such dispute in accordance with
Section 16 hereof. If such dispute is resolved in favor of the
Executive, the Company shall immediately pay the Executive the
remainder of the base pay that was not paid to the Executive during the
pendency of the dispute. If at any time during the pendency of such
dispute the Company fails to pay and provide such base salary and
benefits to the Executive in a timely manner the Company shall be
deemed to have automatically waived whatever rights it then may have
had to terminate the Executive's employment for "cause."
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<PAGE>
(b) Any Notice of Termination by the Company shall be approved
by a resolution duly adopted by a majority of the directors of the
Company then in office;
(c) If the Executive shall in good faith furnish a Notice of
Termination for Good Reason and the Company notifies the Executive that
a dispute exists concerning the termination within the fifteen (15) day
period following the Company's receipt of such notice, the Executive
shall continue the Executive's employment during such dispute. If it is
thereafter determined that (i) Good Reason did exist, the Executive's
Termination Date shall be deemed to be the date on which the dispute is
finally determined, either by mutual written agreement of the parties
or pursuant to Section 16 herein or (ii) Good Reason did not exist, the
employment of the Executive shall continue after such determination as
if the Executive had not delivered the Notice of Termination asserting
Good Reason;
(d) If the Executive gives notice to terminate his employment
for Good Reason and a dispute arises as to the validity of such
dispute, and the Executive does not continue his employment during such
dispute, and it is finally determined that the reason for termination
set forth in such Notice of Termination did not exist, if such notice
was delivered by the Executive, the Executive shall be deemed to have
voluntarily terminated the Executive's employment other than for Good
Reason.
15. NON-COMPETE. The Executive hereby agrees that during the term of
this Agreement and for the period of six months from the Executive's Termination
Date or the termination of this Agreement, that the Executive will not:
(a) Within any jurisdiction or marketing area in the United
States or Latin America in which the Company or any subsidiary thereof
is doing business, own, manage, operate or control any business of the
type and character engaged in the telecommunications industry and
competitive with the Company or any subsidiary thereof. For purposes of
this paragraph, ownership of securities of not in excess of five
percent (5%) of any class of securities of a public company shall not
be considered to be competition with the Company or any subsidiary
thereof in the telecommunications industry; or
(b) Within any jurisdiction or marketing area in the United
States or Latin America in which the Company or any subsidiary thereof
is doing business, act as, or become employed as, an officer, director,
employee, consultant or agent of any business of the type and character
engaged in and competitive with the Company or any of its subsidiaries
in the telecommunications industry; or
(c) Solicit the business of or sell any products to any
company in the United States or Latin America, which is as of the date
hereof, a customer or client of the Company or any of its subsidiaries,
or was such a customer or client thereof within two years prior to the
date of this Agreement if such solicitation or sale results in
competition to the Company; or
(d) Solicit the employment of, or hire, any full time employee
employed by the Company or its subsidiaries as of the date of
termination of this Agreement.
16. ARBITRATION. All claims, disputes and other matters in question
between the parties arising under this Agreement, shall, unless otherwise
provided herein, be decided by arbitration in Miami, Florida in accordance with
the Model Employment Arbitration Procedures of the American Arbitration
Association (including such procedures governing selection of the specific
arbitrator or arbitrators), unless the parties mutually agree otherwise. Within
30 days of the selection of the arbitrator, the Executive and the Company shall
meet in Miami, Florida, with the arbitrator at a place and time designated by
the arbitrator after consultation with the parties and present their respective
positions on the dispute. Each party shall have no longer than two (2) days to
present its position and the entire proceeding before the arbitrator shall be no
more than five (5) consecutive days in duration. The arbitrator's award, which
may
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<PAGE>
include attorneys' fees, shall be rendered within ten (10) days following the
completion of the proceedings. The arbitrator's decision shall be in writing and
shall state the reasoning on which the award rests unless the parties agree
otherwise. Florida law shall govern all aspects of the relationship and the
arbitration, including the applicable statutes of limitation and excluding its
rules concerning conflicts of law. The Company shall pay the costs of any such
arbitration. The award by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in any state
or Federal court having jurisdiction thereof.
17. ATTORNEYS' FEES.
(a) The Company hereby agrees to reimburse the Executive for
all reasonable attorney's fees incurred by the Executive in connection
with the negotiation and preparation of this Agreement.
(b) In the event that either party hereunder institutes any
legal proceedings in connection with its rights or obligations under
this Agreement, the prevailing party in such proceeding shall be
entitled to recover from the other party, all costs incurred in
connection with such proceeding, including reasonable attorneys' fees,
together with interest thereon from the date of demand at the rate of
twelve percent (12%) per annum.
18. SUCCESSORS. This Agreement and all rights of the Executive shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries. In
the event of the Executive's death, all amounts payable to the Executive under
this Agreement shall be paid to the Executive's surviving spouse, or the
Executive's estate if the Executive dies without a surviving spouse. This
Agreement shall inure to the benefit of, be binding upon and be enforceable by,
any successor surviving or resulting corporation or other entity to which all or
substantially all of the business and assets of the Company shall be transferred
whether by merger, consolidation, transfer or safe.
19. ENFORCEMENT. The provisions of this Agreement shall be regarded as
divisible, and if any of said provisions or any part hereof are declared invalid
or unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
20. AMENDMENT OR TERMINATION. This Agreement may not be amended or
terminated during its term as specified above except by written instrument
executed by the Company and the Executive.
21. ENTIRE AGREEMENT. This Agreement, in conjunction with the
Executive's rights under any general employee benefit program, sets forth the
entire agreement between the Executive and the Company with respect to the
subject matter hereof, and supersedes all prior oral or written agreements,
negotiations, commitments and understandings with respect thereto.
22. WITHHOLDING. The Company shall be entitled to withhold from amounts
to be paid to the Executive under this Agreement any federal, state or local
withholding or other taxes or charges which it is from time to time required to
withhold in connection with this Agreement or in connection with any plan or
arrangement in which the Executive is a participant.
The Executive shall also be required to pay to the Company such amount
of cash as shall be necessary to satisfy such withholding or other taxes or
charges to the extent that the amounts to be paid to the Executive. under this
Agreement are insufficient therefor. The Company shall be entitled to rely on an
opinion of counsel if any question as to the amount or requirement of any such
withholding shall arise.
23. RIGHT TO CANCELLATION. Notwithstanding anything to the contrary
contained herein, in the event the Board of Directors does not elect the
Executive as a member of the Board of Directors of the Company within ten (10)
business days from the date hereof, the Executive shall have the right to
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cancel this Agreement upon written notice to the Company within fifteen (15)
days from the date hereof, in which event the Executive and the Company shall be
relieved of all of their respective obligations and liabilities in connection
with this Agreement. Upon the Executive's cancellation of this Agreement
pursuant to this Section 23, the Executive shall not be entitled to any of the
compensation provided for in this Agreement including, without limitation,
termination payment pursuant to Section 13.
24. VENUE; GOVERNING LAW. This Agreement and the Executive's and
Company's respective rights and obligations hereunder shall be governed by and
construed in accordance with the laws of the State of Florida without giving
effect to the provisions, principles, or policies thereof relating to choice or
conflict laws.
25. NOTICE. Notices given pursuant to this Agreement shall be in
writing and shall be deemed given when received, and if mailed, shall be mailed
by United States registered or certified mail, return receipt requested,
addressee only, postage prepaid, if to the Company, to:
InterAmericas Communications Corporation
1221 Brickell Avenue
Miami, Florida 33131
or to such other address as the Company shall have given to the Executive or, if
to the Executive, to such address as the Executive shall have given to the
Company in writing.
26. NO WAIVER. No waiver by either party at any time of any breach by
the other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same time or any prior or
subsequent time.
27. HEADINGS. The headings herein contained are for reference only and
shall not affect the meaning interpretation of any provision of this Agreement.
28. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Executive has executed this
Agreement, on the date first above written.
INTERAMERICAS COMMUNICATIONS CORPORATION
/S/ PATRICIO E. NORTHLAND
-------------------------------------------
Patricio E. Northland
President and Chief
Executive Officer
/S/ DOUGLAS G. GEIB II
-------------------------------------------
Douglas G. Geib II
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AMENDMENT NO. 1 TO
EXECUTIVE EMPLOYMENT
AND SEVERANCE AGREEMENT
THIS AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
(the "AMENDMENT") is executed as of the 9th day of September, 1997, by and
between InterAmericas Communications Corporation, a Texas corporation
(hereinafter referred to as the "COMPANY"), and Douglas G. Geib II (hereinafter
referred as the "EXECUTIVE").
WITNESSETH:
WHEREAS, on September 9, 1997, the Board of Directors of the Company
approved the grant (the "Grant") to the Executive of (i) 250,000 shares of the
Company's Common Stock, par value $.001 per share ("Common Stock") and (ii) an
option to purchase 250,000 shares of Common Stock at an exercise price of $2.13
per share;
WHEREAS, the Company and the Executive desire to amend and restate the
Executive's Executive Employment and Severance Agreement solely to reflect the
Grant, as set forth below.
1. GRANT AND OTHER COMPENSATION MATTERS.
(a) Upon execution of this Agreement, (i) the Executive shall
receive 250,000 shares of Common Stock (the "Incentive Shares"); and
(ii) the Executive shall be granted an additional option (the
"Additional Option") to purchase 250,000 shares of the Company's Common
Stock. One-third of the Additional Option may be exercised, in whole or
in part, upon the signing of this Agreement and shall represent the
right to purchase 83,333 shares of Common Stock; one-third of the
Additional Option shall vest one year after the signing of this
Agreement and shall represent the right to purchase 83,333 shares of
Common Stock; and one-third of the Additional Option shall vest two
years after the signing of this Agreement and shall represent the right
to purchase 83,334 shares of Common Stock. All shares of Common Stock
subject to the Additional Option may be purchased at a price of $2.13
per share, subject to adjustment as set forth in an Option Agreement
between the Company and the Executive. The Additional Option shall
expire ten (10) years from the date hereof (the "EXPIRATION DATE"), and
must be exercised, if at all, in whole or in part on or before the
Expiration Date; PROVIDED HOWEVER, that upon the termination of the
Executive's employment hereunder for Cause, Disability or death or upon
the Executive's voluntary resignation as an employee of the Company
prior to the expiration of the Employment Term for any reason other
than Good Reason, any portion of the Additional Option which has not
vested prior to such termination or resignation shall be canceled and
shall no longer be exercisable; and PROVIDED FURTHER, that the entire
Additional Option shall vest on (a) upon the termination of the
Executive's employment for any reason other than "Cause", Disability or
death, and (b) upon the voluntary termination of employment by
Executive for "Good Reason". The Option Agreement relating to the
Additional Option will be in substantially the form of Exhibit "1"
attached hereto. The Company shall use its best efforts to provide
assistance to cause a loan to be provided to the Executive in an amount
which represents his estimated income tax liability resulting from the
issuance of the Incentive Shares, through an investment banker or other
third party, if available, or from the Company, if such other entities
are unwilling to make such a loan.
(b) The Executive shall be provide with disability insurance
and life insurance in an amount that will not exceed annual premium
payments by the Company of $25,000.
<PAGE>
(c) The Executive shall be allowed to participate in a 401K
retirement program that provides for a Company contribution that is
equal to the maximum amount permitted by law.
2. ARBITRATION.
All claims, disputes and other matters in question between the parties
arising under this Amendment shall, unless otherwise provided herein, be decided
by arbitration in Miami, Florida in accordance with the Model Employment
Arbitration Procedures of the American Arbitration Association (including such
procedures governing selection of the specific arbitrator or arbitrators),
unless the parties mutually agree otherwise. Within 30 days of the selection of
the arbitrator, the Executive and the Company shall meet in Miami, Florida, with
the arbitrator at a place and time designated by the arbitrator after
consultation with the parties and present their respective positions on the
dispute. Each party shall have no longer than two (2) days to present its
position and the entire proceeding before the arbitrator shall be no more than
five (5) consecutive days in duration. The arbitrator's award, which may include
attorneys' fees, shall be rendered within ten (10) days following the completion
of the proceedings. The arbitrator's decision shall be in writing and shall
state the reasoning on which the award rests unless the parties agree otherwise.
Florida law shall govern all aspects of the relationship and the arbitration,
including the applicable statutes of limitation and excluding its rules
concerning conflicts of law. The Company shall pay the costs of any such
arbitration. The award by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in any state
or Federal court having jurisdiction thereof.
3. ATTORNEYS' FEES.
In the event that either party hereunder institutes any legal
proceedings in connection with its rights or obligations under this Amendment,
the prevailing party in such proceeding shall be entitled to recover from the
other party, all costs incurred in connection with such proceeding, including
reasonable attorneys' fees, together with interest thereon from the date of
demand at the rate of twelve percent (12%) per annum.
4. SUCCESSORS.
This Amendment and all rights of the Executive shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries. In
the event of the Executive's death, all amounts payable to the Executive under
this Agreement shall be paid to the Executive's surviving spouse, or the
Executive's estate if the Executive dies without a surviving spouse. This
Amendment shall inure to the benefit of, be binding upon and be enforceable by,
any successor surviving or resulting corporation or other entity to which all or
substantially all of the business and assets of the Company shall be transferred
whether by merger, consolidation, transfer or safe.
5. AMENDMENT OR TERMINATION.
This Amendment may not be amended or terminated during its term as
specified above except by written instrument executed by the Company and the
Executive.
6. ENTIRE AGREEMENT.
This Amendment, in conjunction with the Executive's rights under any
general employee benefit program, sets forth the entire agreement between the
Executive and the Company with respect to the Grant, and supersedes all prior
oral or written agreements, negotiations, commitments and understandings with
respect thereto.
7. VENUE; GOVERNING LAW.
This Amendment and the Executive's and Company's respective rights and
obligations hereunder shall be governed by and construed in accordance with the
laws of the State of Florida without giving effect to the provisions,
principles, or policies thereof relating to choice or conflict laws.
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8. NOTICE.
Notices given pursuant to this Amendment shall be in writing and shall
be deemed given when received, and if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only, postage
prepaid, if to the Company, to:
InterAmericas Communications Corporation
1221 Brickell Avenue
Miami, Florida 33131
Or to such other address as the Company shall have given to the Executive or, if
to the Executive, to such address as the Executive shall have given to the
Company in writing.
9. NO WAIVER.
No waiver by either party at any time of any breach by the other party
OF, or compliance with, any condition or provision of this Amendment to BE
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or any prior or subsequent time.
10. HEADINGS.
The headings herein contained are for reference only and shall not
affect the meaning interpretation of any provision of this Amendment.
11. COUNTERPARTS.
This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Executive has executed this
Agreement, on the date first above written.
INTERAMERICAS COMMUNICATIONS CORPORATION
/S/ PATRICIO E. NORTHLAND
----------------------------------------
Patricio E. Northland
President and Chief
Executive Officer
/S/ DOUGLAS G. GEIB II
----------------------------------------
Douglas G. Geib II
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STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the 9th
day of September, 1997 (the "Grant Date"), by and between INTERAMERICAS
COMMUNICATIONS CORPORATION (the "Grantor") and DOUGLAS G. GEIB II (the
"Optionee").
W I T N E S S E T H:
WHEREAS, in consideration of prior services and services to be rendered
by the Optionee to the Grantor and certain promises made by the Optionee to the
Grantor, the Grantor desires to grant the Optionee an option to purchase TWO
HUNDRED FIFTY THOUSAND (250,000) shares of Common Stock, par value $.001 per
share ("Common Stock"), of the Grantor, upon the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee a non-qualified stock
option (the "Option") (subject to Section 7 hereof) to purchase from the Grantor
TWO HUNDRED FIFTY THOUSAND (250,000) shares of Common Stock (after the exercise
of the Option and the acquisition of the shares, the "Option Shares"), at the
price of $2.13 per whole share (the "Option Price").
SECTION 2. EXERCISE OF OPTION.
(a) VESTING SCHEDULE. The Option may be exercised in whole or
in part, in accordance with the following vesting schedule: (i) 1/3 of the
Option shall vest immediately upon the signing of this Agreement; (ii) 1/3 of
the Option shall vest one year after the signing of this Agreement, (iii) 1/3 of
the Option shall vest two years after the singing of this Agreement. The Option
shall expire on the tenth anniversary hereof (the "Expiration Date"), unless
sooner terminated as set forth herein,
(b) METHOD OF EXERCISE. The Option is exercisable by the
Optionee's delivering to the Grantor a written notice specifying the number of
the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. The Optionee shall be deemed
to be a holder of the Option Shares immediately upon, and to the extent of, the
exercise of this Option as set forth above.
(c) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, the Grantor shall cause one or
more stock certificates evidencing the Optionee's ownership of the Option Shares
to be issued to the Optionee. A legend in substantially the form set forth below
shall be placed upon each stock certificate representing the Option Shares:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
("Act"), or the securities laws of any state or other
jurisdiction, including the Florida Securities Act, and are
restricted securities as that term is defined under Rule 144
promulgated under the Act. These shares may not be sold,
transferred, pledged, hypothecated or otherwise disposed of in
any manner (a "Transfer") unless they are registered under the
Act and the securities laws of all applicable states and other
jurisdictions or unless the request for Transfer is
accompanied by a favorable opinion of
<PAGE>
counsel satisfactory to the issuer, stating that such Transfer
will not result in a violation of such laws."
SECTION 4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall at
any time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any reorganization of the Grantor or in case the Grantor shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise
expressly provided herein, the issuance by the Grantor of shares of its capital
stock of any class, or securities convertible into shares of capital stock of
any class, either in connection with the direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Grantor convertible into such shares or other securities,
shall not affect this Option, and no adjustment by reason thereof shall be made
with respect to the number of or exercise price of Option Shares then subject to
this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the
generality of the foregoing, the existence of this Option shall not affect in
any manner the right or power of the Grantor to approve or the Grantor to make,
authorize or consummate (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Grantor's capital structure or its
business; (ii) any merger or consolidation of the Grantor; (iii) any issuance by
the Grantor of debt securities, or preferred or preference stock that would rank
above the Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) IMMEDIATE EXERCISE OF OPTION. Unless otherwise provided
herein, each outstanding Option shall become immediately fully exercisable upon
the following:
(i) If there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company immediately
before such transaction cease to own at least 51 percent of the voting stock of
the Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) If the stockholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
2
<PAGE>
(iii) If the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
SECTION 5. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner other than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
SECTION 6. TERMINATION OF OPTION. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date;
(b) The Option shall terminate three months after the
Optionee's termination of employment or ceases to be a director of the Company;
(c) If the Optionee dies before the Option terminates pursuant
to Section 6(a) or 6(b), above, the Option shall terminate on the earlier of (i)
the date on which the Option would have lapsed had the Optionee lived and had
his employment status (I.E., whether the Optionee was a employed on the date of
his death or had previously terminated employment) remained unchanged; or (ii)
15 months after the date of the Optionee's death. Upon the Optionee's death, any
exercisable Options may be exercised by the Optionee's legal representative or
representatives, by the person or persons entitled to do so under the Optionee's
last will and testament, or, if the Optionee shall fail to make testamentary
disposition of the Option or shall die intestate, by the person or persons
entitled to receive said Option under the applicable laws of descent and
distribution.
SECTION 7. APPROVAL OF STOCK OPTION PLAN. The Company intends, at its
next Annual Meeting of Stockholders (the "Annual Meeting"), to submit for
stockholder consideration and approval its 1997 Stock Option Plan (the "Plan").
In the event that the Plan is approved by the Company's stockholders, then this
Option shall be deemed to be an Incentive Stock Option (within the meaning of
the Internal Revenue Code of 1986, as amended, (the "Code") have been granted
under and pursuant to the Plan. If, however, the Plan is not so approved at the
Annual Meeting, then this Option shall be deemed to be a non-qualified stock
option (which means any option which is not an Incentive Stock Option under the
Code).
SECTION 8. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 9. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the Option
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Option Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or appropriate to
comply with the provisions of any securities law deemed by the Grantor to be
applicable to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
3
<PAGE>
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This Agreement may not be assigned in whole or
in part by the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
4
<PAGE>
IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
INTERAMERICAS COMMUNICATIONS
CORPORATION
By: /S/ PATRICIO E. NORTHLAND
----------------------------------------
Name: Patricio E. Northland
Title: President and Chief Executive Officer
OPTIONEE:
/S/ DOUGLAS G. GEIB II
--------------------------------------------
Douglas G. Geib II
5
<PAGE>
EXHIBIT A
INTERAMERICAS COMMUNICATIONS CORPORATION
EXERCISE NOTICE
InterAmericas Communications Corporation
2600 Douglas Road, Suite 501
Coral Gables, Florida 33134
SECTION 1. EXERCISE OF OPTION. Effective as of today, _____________,
199__, the undersigned ("Purchaser") hereby elects to purchase __________ shares
(the "Shares") of the Common Stock of InterAmericas Communications Corporation
(the "Company") under and pursuant to the Stock Option Agreement dated
_______________ (the "Option Agreement"). The purchase price for the Shares
shall be as set forth in the Option Agreement, as adjusted.
SECTION 2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares (either in cash, certified or
official bank check or by money order).
SECTION 3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Option Agreement and agrees to
abide by and be bound by its terms and conditions.
SECTION 4. RIGHTS AS STOCKHOLDER. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of Shares so acquired shall be issued
to the Optionee as soon as practicable after exercise of the Option.
SECTION 5. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
SECTION 6. ENTIRE AGREEMENT. The Option Agreement is incorporated
herein by reference. This Exercise Notice and the Option Agreement constitute
the entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: INTERAMERICAS COMMUNICATIONS
CORPORATION
By:_______________________________ By:____________________________
Name:__________________________
Title:_____________________
ADDRESS:
__________________________________
6
<PAGE>
NEITHER THIS OPTION NOR THE COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF HAS
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE "ACT"), OR
QUALIFIED UNDER ANY STATE SECURITIES LAW (THE "LAW"), AND THIS OPTION HAS BEEN,
AND THE COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF WILL BE, ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF. NO SUCH SALE OR OTHER DISPOSITION MAY BE MADE WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND QUALIFICATION UNDER THE LAW
RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
INTERAMERICAS COMMUNICATIONS CORPORATION AND ITS COUNSEL, THAT SAID REGISTRATION
AND QUALIFICATIONS ARE NOT REQUIRED UNDER THE ACT AND LAW, RESPECTIVELY.
INTERAMERICAS COMMUNICATIONS CORPORATION
STOCK OPTION AGREEMENT
This stock option (the "OPTION" or the "AGREEMENT") is being granted
pursuant to certain resolutions of the Board of Directors of InterAmericas
Communications Corporation (the "COMPANY").
I. NOTICE OF STOCK OPTION GRANT
OPTIONEE: Douglas G. Geib II
The Optionee has been granted an option to purchase Common Stock of
InterAmericas Communications Corporation (the "COMPANY"). This option shall be
subject to the following terms and conditions:
<TABLE>
<S> <C>
Date of Grant April 8, 1997
Number of Shares Subject
to Option 500,000
Type of Option: Incentive Stock Option, as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the
"CODE") (subject to paragraph 9 hereof)
Expiration Date: April 8, 2007, unless sooner terminated as set forth
herein.
Vesting Schedule: The Option may be exercised, in whole or in part, in
accordance with the following vesting schedule:
(i) 1/3 of the Option shall vest immediately upon the
signing of this Agreement,
(ii) 1/3 of the Option shall vest one year after the
signing of this Agreement,
(iii) 1/3 of the Option shall vest two years after the
signing of this Agreement.
Exercise Price: The exercise price (the "Exercise Price") shall be equal
to $2.437 per share of the Company's Common Stock,
representing the closing price of the Company's
Common Stock on the Nasdaq SmallCap Market on
April 10, 1997.
</TABLE>
<PAGE>
II. AGREEMENT
1. GRANT OF OPTION. The Company hereby grants to the Optionee named in
the Notice of Stock Option Grant ("NOTICE OF GRANT") attached as Part I of this
Agreement (the "OPTIONEE"), an option (the "OPTION") to purchase the number of
shares ("SHARES") of the Company's Common Stock, par value $.001 per share
("COMMON STOCK"), as set forth in the Notice of Grant, at the Exercise Price per
Share set forth in the Notice of Grant, subject to the terms and conditions set
forth herein.
2. EXERCISE OF OPTION.
(a) RIGHTS TO EXERCISE. This Option is exercisable during its
term in accordance with the Vesting Schedule and Exercise Price set
forth in the Notice of Grant and the applicable provisions of this
Option Agreement. In the event of Optionee's death, Disability or other
termination of Optionee's employment relationship, the exercisability
of the Option shall be governed by the applicable provisions of the
Employment Agreement dated the date hereof between the Optionee and the
Company (the "Employment Agreement").
(b) METHOD OF EXERCISE. This Option is exercisable by delivery
of an exercise notice, in the form attached as Exhibit A (the "EXERCISE
NOTICE"), which shall state the election to exercise the Option, the
number of Shares in respect of which the Option is being exercised (the
"EXERCISED SHARES"), and such other representations and agreements as
may be required by the Company. The Exercise Notice shall be signed by
the Optionee and shall be delivered in person or by certified mail to
the Secretary of the Company. The Exercise Notice shall be accompanied
by payment of the aggregate Exercise Price as to all Exercise Shares.
This Option shall be deemed to be exercised upon receipt by the Company
of such fully executed Exercise Notice accompanied by such aggregate
Exercise Price.
3. METHOD OF PAYMENT. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(a) Cash;
(b) Check;
(c) In lieu of exercising this Option by delivery of cash or
check, the Optionee may make a valid Option exercise by electing to
receive Shares equal to the value of this Option (or the portion
thereof being canceled) by surrendering this Option at the principal
office of the Company together with the Exercise Notice (a "NET
EXERCISE"), in which event the Company shall transfer to the Optionee a
number of Shares computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of Option Shares to be issued to
such Optionee.
Y = the number of Option Shares purchasable by
such Optionee under this Option Agreement
the rights to which are surrendered pursuant
to the Net Exercise.
A = the Fair Market Value of one Option Share,
(as determined by the average bid and ask
price (or closing price, as appropriate) per
share of Common Stock as quoted on Nasdaq or
other national exchange upon which the
Company's Common Stock is quoted).
B = the Exercise Price (as adjusted to the date
of such calculation).
2
<PAGE>
4. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner other than by will or by the laws of descent or distribution and may
be exercised during the lifetime of the Optionee only by the Optionee. The terms
of this Option Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee.
5. TERM OF OPTION. This Option may be exercised in accordance with the
terms of the Employment Agreement.
6. TERMINATION OF OPTION. The Option shall terminate in accordance with
the provisions of the Employment Agreement.
7. DILUTION PROTECTION.
(a) In the event the Company shall (i) declare a dividend on
its Common Stock in shares of Common Stock or make a distribution in
shares of Common Stock, (ii) declare a stock split or reverse stock
split of its outstanding shares of Common Stock; (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock or (iv) issue by reclassification of its shares of Common
Stock other securities (including any such reclassification in
connection with a consolidation or merger in which the Company or any
of its subsidiaries is the continuing corporation), then the number of
shares of Common Stock of the Company deliverable to Optionee hereunder
and the exercise price related thereto shall be adjusted so that the
Optionee shall be entitled to receive the kind and number of shares of
Common Stock of the Company which the Optionee has the right to
receive, upon the happening of any of the events described above, with
respect to the shares of the Common Stock which were otherwise
deliverable pursuant hereto and the exercise price per share thereof
shall be adjusted so that the same percentage of the Company's issued
and outstanding shares of capital stock shall remain subject to
purchase at the same aggregate exercise price. An adjustment made
pursuant to this paragraph shall become effective immediately after the
effective date of such event;
(b) In the event of any consolidation or merger to which the
Company is a party other than a merger or consolidation in which the
Company is the continuing corporation, or in case of any sale or
conveyance to another entity of the property of the Company as an
entirety or substantially as an entirety, or in the case of any
statutory exchange of securities with another corporation (including
any exchange effected in connection with a merger of a third
corporation into the Company), as a condition to any such
consolidation, merger or sale, the Company shall secure the agreement
of the surviving corporation or purchaser, in a manner reasonably
satisfactory to the Optionee, that the Optionee shall have the right
thereafter to convert this Option into the kind and amount of
securities, cash or other property which he would have owned or have
been entitled to receive immediately after such consolidation, merger,
statutory exchange, sale or conveyance had the Option been exercised
immediately prior to the effective date of such consolidation, merger,
statutory exchange, sale or conveyance and in any such case, if
necessary, appropriate adjustment shall be made in the application of
the provisions set forth in this Section 7 shall thereafter
correspondingly be made applicable, as nearly as may reasonably be, in
relation to any shares of stock or other securities or property
thereafter deliverable on the exercise of this Option. The above
provisions of this Subsection 7(b) shall similarly apply to successive
consolidations, mergers, statutory exchanges, sales or conveyances.
Notice of any such consolidation, merger, statutory exchange, sale or
conveyance and of said provisions so proposed to be made, shall be
mailed to the Optionee not less than 20 days prior to such event. A
sale of all or substantially all of the assets of the Company for a
consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
(c) Whenever the number of Shares or the exercise price of
this Option is adjusted pursuant to this paragraph, the Company shall
promptly mail by first class mail, postage prepaid, to Optionee, notice
of such adjustment or adjustments.
3
<PAGE>
(d) Unless otherwise provided in any Option, each outstanding
Option shall become immediately fully exercisable.
(i) If there occurs any transaction (which shall
include a series of transactions occurring within 60 days or
occurring pursuant to a plan), that has the result that
shareholders of the Company immediately before such
transaction cease to own at least 51 percent of the voting
stock of the Company or of any entity that results from the
participation of the Company in a reorganization,
consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) If the shareholders of the Company shall approve
a plan of merger, consolidation, reorganization, liquidation
or dissolution in which the Company does not survive (unless
the approved merger, consolidation, reorganization,
liquidation or dissolution is subsequently abandoned); or
(iii) If the shareholders of the Company shall
approve a plan for the sale, lease, exchange or other
disposition of all or substantially all the property and
assets of the Company (unless such plan is subsequently
abandoned).
8. AVAILABILITY OF COMPANY STOCK. The Company hereby agrees and
covenants that at all times during the Exercise Period it shall reserve for
issuance a sufficient number of shares of Common Stock as would be required upon
full exercise of the Option represented by this Agreement
9. APPROVAL OF STOCK OPTION PLAN. The Company intends, at its next
Annual Meeting of Shareholders (the "ANNUAL MEETING"), to submit for shareholder
consideration and approval its 1997 Stock Option Plan (the "PLAN"). In the event
that the Plan is approved by the Company's shareholders, then this Option shall
be deemed to be an Incentive Stock Option (within the meaning of the Internal
Revenue Code of 1986, as amended, (the "Code") have been granted under and
pursuant to the Plan. If, however, the Plan is not so approved at the Annual
Meeting, then this Option shall be deemed to be a non-qualified stock option
(which means any option which is not an Incentive Stock Option under the Code).
10. NO RIGHT TO EMPLOYMENT. Nothing in this Agreement shall interfere
with or limit in any way the right of the Company to terminate the Optionee's
employment at any time, nor confer upon the Optionee any right to continue in
the employ of the Company or any Subsidiary (subject, in each case, to the
Optionee's Employment Agreement with the Company);
11. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Florida.
12. TERMS OF EMPLOYMENT AGREEMENT TO CONTROL. In the event of any
conflict between the terms of this Agreement and the Employment Agreement, the
terms of the Employment Agreement shall be deemed to prevail.
IN WITNESS WHEREOF, this Agreement is executed as of the 1st day of
May, 1997.
INTERAMERICAS COMMUNICATION CORPORATION
By: /S/ PATRICIO E. NORTHLAND
----------------------------------
4
<PAGE>
Its: PRESIDENT
OPTIONEE:
/S/ DOUGLAS G. GEIB II
--------------------------------------
Douglas G. Geib II
5
<PAGE>
EXHIBIT A
INTERAMERICAS COMMUNICATIONS CORPORATION
EXERCISE NOTICE
InterAmericas Communications Corporation
1221 Brickell Avenue
Miami, FL 33131
1. EXERCISE OF OPTION. Effective as of today, _____________, 199__, the
undersigned ("PURCHASER") hereby elects to purchase __________ shares (the
"SHARES") of the Common Stock of InterAmericas Communications Corporation (the
"COMPANY") under and pursuant to the Stock Option Agreement dated April __, 1997
(the "OPTION AGREEMENT"). The purchase price for the Shares shall be as set
forth in the Option Agreement, as adjusted.
2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the Company the
full purchase price for the Shares (either in cash, check or through a Net
Exercise as defined in the Option Agreement).
3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that Purchaser
has received, read and understood the Option Agreement and agrees to abide by
and be bound by its terms and conditions.
4. RIGHTS AS SHAREHOLDER. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the stock certificate evidencing such Shares, no right
to vote or receive dividends or any other rights as a shareholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
A share certificate for the number of Shares so acquired shall be issued to the
Optionee as soon as practicable after exercise of the Option.
5. TAX CONSULTATION. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.
6. ENTIRE AGREEMENT. The Option Agreement is incorporated herein by
reference. This Exercise Notice and the Option Agreement constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the subject matter
hereof.
Submitted by: Accepted by:
OPTIONEE: INTERAMERICAS COMMUNICATIONS
CORPORATION
By:____________________________ By:________________________________
Its:________________________________
ADDRESS:
_______________________________
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made and entered
into as of the 1st day of May, 1997, by and between InterAmericas Communications
Corporation (the "Company") and Douglas G. Geib II (the "Holder").
RECITALS
A. Pursuant to an Employment Agreement of even date herewith (the
"Employment Agreement"), the Holder is becoming the Chief Financial Officer of
the Company.
B. Under the Employment Agreement, the Company is granting the Holder
an option to purchase 500,000 shares of the Company's common stock, par value
$.001 per share ("Common Stock").
C. The Company has agreed to register under the Securities Act of 1933,
as amended (the "Securities Act"), the shares (the "Shares") of Common Stock of
the Company to be received by the Holder from time to time under the Option
Agreement, upon the terms, and subject to the conditions, hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and other good, valuable and
sufficient consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
AGREEMENT
1. REGISTRATION AT THE REQUEST OF THE HOLDER.
(a) The Company agrees that upon receipt by the Company of a
Registration Demand (as hereinafter defined) satisfying the conditions under
Section 1(b) hereof, the Company will, with reasonable promptness, and in any
case not later than ninety (90) days after receipt by the Company of the
Registration Demand (except that such filing shall be coordinated with the close
of the fiscal quarters of the Company), file a registration statement with the
Securities and Exchange Commission ("Commission") relating to such shares of
Common Stock as to which registration is requested in the Registration Demand.
The Company shall use its best efforts to cause such registration statement to
promptly become effective under the Securities Act and to qualify the same under
the blue sky laws of such states as may be requested; provided, however, that
with respect to compliance with blue sky laws, the Company shall not be
obligated to qualify as a foreign corporation or as a dealer in securities or to
execute or file any general consent to service of process under the laws of any
such state where it is not so subject.
(b) A "REGISTRATION DEMAND" shall be a written notice from the
Holder stating that he desires to sell shares of Common Stock ("Shares") under
circumstances requiring registration under the Securities Act and requesting
that the Company effect registration with respect to the Shares held by the
Holder and designated in such written notice, PROVIDED, that (i) in no event may
the Holder make a Registration Demand before November 15, 1997 and (ii) the
number of Shares sought to be sold by the Holder pursuant to such Registration
Demand shall not be less than 100,000 Shares (as adjusted to reflect any stock
dividend, stock split, recapitalization, merger or other such transaction
involving the Company).
(c) The Company shall be obligated to effect registration and
qualification pursuant to a request of the Holder under this Section 1 no more
than three times subject to the terms and conditions hereof.
(d) If the Holder informs the Company by written notice that
he is withdrawing his Registration Demand, then the registration statement need
not be filed and may be withdrawn, and if any
<PAGE>
registration statement that has been filed with the Securities and Exchange
Commission is withdrawn (which the Company hereby agrees to use its best efforts
to so cause) and the Holder pays all of the Company's out-of-pocket expenses
with respect to such registration and qualification incurred to the date of the
notice under this Section 1(d), then the whole effort will not count as a
registration and qualification (or an exercise of rights) for purposes of the
limit established in Section 1(c) hereof. If the withdrawing Holder does not pay
such out-of-pocket expenses, then the effort will so count.
2. PIGGYBACK RIGHTS. If the Company shall at any time propose to file a
registration statement under the Securities Act for any underwritten sales of
shares of any of the Company's equity securities (or any warrants, units,
convertibles, rights or other securities related or linked to any shares of the
Company's equity securities), whether for a secondary offering or for a primary
offering of equity securities by the Company, and if the Company shall at any
time propose to file a registration statement under the Securities Act pursuant
to Section 1 hereof, the Company shall give written notice of such registration
to the Holder no later than thirty (30) days before its filing with the
Commission; provided, that registrations in connection with any employee stock
option or employee stock purchase or savings plan shall not be deemed to be an
underwritten sale for purposes of this Section 2. If the Holder so requests
within thirty (30) days, the Company shall include in any registration the
Shares (including Shares issuable upon exercise of any vested and immediately
exercisable option) held by the Holder and requested to be included in such
registration, but the Company shall not be obligated to so include such Shares
to the extent the underwriter or underwriters, if any, of such securities being
otherwise registered by the Company shall determine in good faith that the
inclusion of such Shares would jeopardize the successful sale at the desired
price of such other securities proposed to be sold by such underwriter or
underwriters, in which case the Shareholder or Shareholders requesting to
participate in such registration shall be entitled to participate in any such
reduced number of Shares (if any) which may be included in such registration.
The obligations and rights of the Company and the Holder under this Section 2
shall not affect in any way the obligations and rights of the Company and the
Holder under Section 1.
3. EXPENSES. Subject to the limitations contained in this Section 3 and
except as otherwise specifically provided in this Agreement, the entire costs
and expenses of the registrations and qualifications pursuant to Section 1
hereof and of any registration and qualification pursuant to Section 2 hereof
shall be borne by the Company. Such costs and expenses shall include, without
limitation, the fees and expenses of counsel for the Company and of its
accountants, all other costs, fees and expenses of the Company incident to the
preparation, printing and filing under the Securities Act of the registration
statement and all amendments and supplements thereto, the reasonable fees and
expenses of a special counsel to the Holder relating to such registration and
qualification, the cost of furnishing copies of each preliminary prospectus,
each final prospectus and each amendment or supplement thereto to underwriters,
dealers and other purchasers of the Shares and the costs and expenses (including
fees and disbursements of counsel) incurred in connection with the qualification
of the Shares under the blue sky laws of various jurisdictions. The Company
shall not, however, pay underwriting discount or commissions to the extent
related to the sale of Shares sold in any registration and qualification.
4. PROCEDURES.
(a) In the case of each registration or qualification pursuant
to Section 1 or 2, the Company will keep the Holder advised in writing as to the
initiation of proceedings for such registration and qualification and as to the
completion thereof, and will advise the Holder, upon request, of the progress of
such proceedings.
(b) At the Company's expense, the Company will keep each
registration and qualification under this Agreement effective (and in compliance
with the Securities Act) by such action as may be necessary or appropriate for a
period of 120 days after the effective date of such registration statement,
including, without limitation, the filing of post-effective amendments and
supplements to any registration statement or prospectus necessary to keep the
registration statement current and the further qualification under any
applicable blue sky or other state securities laws to permit such sale or
distribution, all as requested by the Holder. The Company will immediately
notify the Holder at any time when a prospectus relating thereto is required to
be delivered under the Securities Act, of the happening of any event as a result
2
<PAGE>
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing.
(c) The Company will use its best efforts to furnish to the
Holder a signed counterpart, addressed to the Holder, of (i) an opinion of
counsel for the Company, dated the effective date of such registration
statement, and (ii) a so-called "cold comfort" letter signed by the independent
public accountants who have certified the Company's financial statements
included in such registration statement, and such opinion of counsel and
accountants' letter shall cover substantially the same matters with respect to
such registration statement (and the prospectus included therein) and, in the
case of such accountants' letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in connection with
underwritten public offerings of securities.
(d) Without limiting any other provision hereof, in connection
with any registration of Shares under this Agreement, the Company will use its
best efforts to comply with the Securities Act, the Securities Exchange Act of
1934, as amended (the "Securities Exchange Act"), and all applicable rules and
regulations of the Commission.
(e) In connection with any registration of Shares under this
Agreement, the Company will provide, if appropriate, a transfer agent and
registrar for the Shares not later than the effective date of such registration
statement.
(f) In connection with any registration of Shares under this
Agreement, the Company will, if requested by the underwriters for any Shares
included in such registration, enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, provisions relating to
indemnification and contribution.
(g) If the Company at any time proposes to register any of its
securities under the Securities Act, other than pursuant to a request made under
Section 1 hereof, whether or not for sale for its own account, and such
securities are to be distributed by or through one or more underwriters, then
the Company will make reasonable efforts, if requested by the Holder, to arrange
for such underwriters to include the Shares owned by the Holder among the
securities to be distributed by or through such underwriters. The Holder shall
be a party to any such underwriting agreement, and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
the Holder.
(h) In connection with the preparation and filing of each
registration statement registering Shares under this Agreement, the Company will
give the Holder and their underwriters, if any, and their respective counsel and
accountants the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Company with its officers, its counsel and the independent
public accountants who have certified its financial statements, as shall be
necessary, in the opinion of such holders or such underwriters or their
respective counsel, in order to conduct a reasonable and diligent investigation
within the meaning of the Securities Act. Without limiting the foregoing, each
registration statement, prospectus, amendment, supplement or any other document
filed with respect to a registration under this Agreement shall be subject to
review and reasonable approval by the Holder registering Shares in such
registration and by his counsel.
5. PROVISION OF DOCUMENTS. The Company will, at the expense of the
Company, furnish to the Holder, such number of registration statements,
prospectuses, offering circulars and other documents incident to any
registration or qualification referred to in Sections 1 or 2 as the Holder from
time to time may reasonably request.
3
<PAGE>
6. INDEMNIFICATION. The Company will indemnify and hold harmless the
Holder and any underwriter (as defined in the Securities Act) for the Holder and
each person, if any, who controls the Holder or underwriter within the meaning
of the Securities Act against any losses, claims, damages or liabilities, joint
or several, and expenses (including reasonable attorneys' fees and expenses and
reasonable costs of investigation) to which the Holder or underwriter or such
controlling person may be subject, under the Securities Act or otherwise,
insofar as any thereof arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in (A) any registration
statement under which the Holder's Shares were registered under the Securities
Act pursuant to Sections 1 or 2 hereof, any prospectus or preliminary prospectus
contained therein, or any amendment or supplement thereto or (B) any other
document incident to the registration of the Shares under the Securities Act or
the qualification of the Shares under any state securities laws applicable to
the Company, (ii) the omission or alleged omission to state in any item referred
to in the preceding clause (i) a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Securities Act, the Securities
Exchange Act or any other federal or state securities law, rule or regulation
applicable to the Company and relating to action or inaction by the Company in
connection with any such registration or qualification, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or alleged untrue statement or omission or alleged omission
based upon information furnished to the Company in writing by the Holder or by
any underwriter for the Holder expressly for use therein (with respect to which
information the Holder or underwriter shall so indemnify and hold harmless the
Company, any underwriter for the Company and each person, if any, who controls
the Company or such underwriter within the meaning of the Securities Act). The
Company will enter into an underwriting agreement with the underwriter or
underwriters for any offering registered under the Securities Act pursuant to
Section 1 or 2 hereof and with the Holder selling Shares pursuant to such
offering, and such underwriting agreement shall contain customary provisions
with respect to indemnification and contribution which shall, at a minimum,
provide the indemnification set forth above.
7. NOTICES. All notices required or permitted to be given pursuant to
this Agreement shall be given in writing, shall be transmitted by personal
delivery, by registered or certified mail, return receipt requested, postage
prepaid, or by telecopier or other electronic means (with a confirming copy by
registered or certified mail, postage prepaid) and shall be addressed as
follows:
When the Holder is the intended recipient:
Douglas G. Geib II
___________________________________
___________________________________
WITH A COPY TO:
Baker & Hostetler LLP
3200 National City Center
1900 East Ninth Street
Cleveland, Ohio 44114-3485
ATTENTION: Jerome P. Grisko, Jr., Esq.
Telecopy: (216)696-0740
When the Company is the intended recipient:
InterAmericas Communications Corporation
1221 Brickell Avenue
Miami, Florida 33131
ATTENTION: Patricio E. Northland, CEO
Telecopy: (305) 377-6793
4
<PAGE>
WITH A COPY TO:
Baker & McKenzie
701 Brickell Avenue, Suite 1600
Miami, Florida 33131
ATTENTION: Andrew Hulsh, Esq.
Telecopy: (305) 789-8900
Any party to this Agreement (each a "Party") may designate a new address to
which notices required or permitted to be given pursuant to this Agreement shall
thereafter be transmitted by giving written notice to that effect to the other
Parties. Each notice transmitted in the manner described in this Section 9 shall
be deemed to have been given, received and become effective for all purposes at
the time it shall have been (i) delivered to the addressee as indicated by the
return receipt (if transmitted by mail), the affidavit of the messenger (if
transmitted by personal delivery) or the answer back or call back (if
transmitted by telecopier or other electronic means, but only if a confirmation
copy of such telecopied or electronically delivered notice is also delivered by
registered or certified mail, postage prepaid) or (ii) presented for delivery to
the addressee as so indicated during normal business hours, if such delivery
shall have been refused for any reason.
8. GOVERNING LAW; FORUM.
(a) The validity, interpretation, performance and enforcement
of this Agreement shall be governed by the laws the State of Florida (without
giving effect to the laws, rules or principles of the State of Florida regarding
conflicts of laws).
(b) Each party agrees that any proceeding arising out of or
relating to this Agreement or the breach or threatened breach of this Agreement
shall be commenced and prosecuted in a court in Miami, Florida. Each party
consents and submits to the non-exclusive personal jurisdiction of any court in
Miami, Florida in respect of any such proceeding. Each party consents to service
of process upon it with respect to any such proceeding by registered mail,
return receipt requested, and by any other means permitted by applicable laws
and rules. Each party waives any objection that it may now or hereafter have to
the laying of venue of any such proceeding in any court in Miami, Florida and
any claim that it may now or hereafter have that any such proceeding in any
court in Miami, Florida has been brought in an inconvenient forum.
(c) Final judgment against any party hereto in any suit or
proceeding shall be conclusive, and may be enforced in any other jurisdiction
(i) by suit, action or proceeding on the judgment, a certified or true copy of
which shall be conclusive evidence of the fact and the amount of indebtedness or
liability of the party hereto, or (ii) in any other manner provided by or
pursuant to the laws of such other jurisdiction.
(d) Nothing herein shall in any way be deemed to limit the
ability or right of any party to serve any legal process, summons, notices or
other documents in any other manner permitted by applicable law, or to obtain
jurisdiction over any other party, or to bring actions, suits or proceedings
against any other party in such other jurisdictions, and in such manner, as may
be otherwise permitted by applicable law.
9. BINDING EFFECT; ASSIGNMENT; THIRD PARTY BENEFICIARIES. This
Agreement shall be binding upon the parties and their respective successors and
assigns and shall inure to the benefit of the parties and their respective
successors and permitted assigns. No party shall assign any of its rights or
delegate any of its duties under this Agreement (by operation of law or
otherwise) without the prior written consent of the other parties. Any
assignment of rights or delegation of duties under this Agreement by a party
without the prior written consent of the other parties, if such consent is
required hereby, shall be void. No person (including, without limitation, any
employee of a party) shall be, or be deemed to be, a third party beneficiary of
this Agreement.
10. ENTIRE AGREEMENT; EFFECTIVE DATE OF AGREEMENT. This Agreement
constitutes the entire contract between the parties with respect to the subject
matter hereof and cancels and supersedes all of the
5
<PAGE>
previous contracts, commitments, representations, warranties and understandings
(whether oral or written) by, between or among the parties with respect to the
subject matter hereof.
11. AMENDMENTS. No addition to, and no cancellation, renewal,
extension, modification or amendment of, this Agreement shall be binding upon a
party unless such addition, cancellation, renewal, extension, modification or
amendment is set forth in a written instrument which states that it adds to,
amends, cancels, renews, extends or modifies this Agreement and has been
approved by all of the parties hereto.
12. WAIVERS. No waiver of any provision of this Agreement shall be
binding upon a party unless such waiver is expressly set forth in a written
instrument which is executed and delivered by such party or on behalf of such
party by an officer of, or attorney-in-fact for, such party. Such waiver shall
be effective only to the extent specifically set forth in such written
instrument. Neither the exercise (from time to time and at any time) by a party
of, nor the delay or failure (at any time or for any period of time) to
exercise, any right, power or remedy shall constitute a waiver of the right to
exercise, or impair, limit or restrict the exercise of, such right, power or
remedy or any other right, power or remedy at any time and from time to time
thereafter. No waiver of any right, power or remedy of a party shall be deemed
to be a waiver of any other right, power or remedy of such party or shall,
except to the extent so waived, impair, limit or restrict the exercise of such
right, power or remedy.
13. REMEDIES.
(a) The rights, powers and remedies of the parties set forth
herein for a breach of or default under this Agreement are cumulative and in
addition to, and not in lieu of, any rights or remedies that any party may
otherwise have under this Agreement, at law or in equity.
(b) The parties acknowledge that the Shares are unique, and
that any violation of this Agreement cannot be compensated for by damages alone.
Accordingly, in addition to all of the other remedies which may be available
hereunder or under applicable law, any party shall have the right to any
equitable relief which may be appropriate to remedy a breach or threatened
breach by any other party hereunder, including, without limitation, the right to
enforce specifically the terms of this Agreement by obtaining injunctive relief
in respect of any violation or non-performance hereof, and any party shall have
the right to seek recovery of and be awarded attorneys' fees and expenses in any
proceeding with respect to this Agreement as reasonably determined by the court
in which such proceeding is brought.
14. HEADINGS; COUNTERPARTS. The headings set forth in this Agreement
have been inserted for convenience of reference only, shall not be considered a
part of this Agreement and shall not limit, modify or affect in any way the
meaning or interpretation of this Agreement. This Agreement may be signed in any
number of counterparts, each of which (when executed and delivered) shall
constitute an original instrument, but all of which together shall constitute
one and the same instrument. It shall not be necessary when making proof of this
Agreement to account for any counterparts other than a sufficient number of
counterparts which, when taken together, contain signatures of all of the
parties.
15. SEVERABILITY. If any provision of this Agreement shall hereafter be
held to be invalid, unenforceable or illegal, in whole or in part, in any
jurisdiction under any circumstances for any reason, (i) such provision shall be
reformed to the minimum extent necessary to cause such provision to be valid,
enforceable and legal while preserving the intent of the parties as expressed
in, and the benefits to the parties provided by, this Agreement or (ii) if such
provision cannot be so reformed, such provision shall be severed from this
Agreement and an equitable adjustment shall be made to this Agreement
(including, without limitation, addition of necessary further provisions to this
Agreement) so as to give effect to the intent as so expressed and the benefits
so provided. Such holding shall not affect or impair the validity,
enforceability or legality of such provision in any other jurisdiction or under
any other circumstances. Neither such holding nor such reformation or severance
shall affect or impair the legality, validity or enforceability of any other
provision of this Agreement.
6
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first above written.
INTERAMERICAS COMMUNICATIONS
CORPORATION
By:/S/ PATRICIO E. NORTHLAND
-------------------------
Name: Patricio E. Northland
Title: President
/S/ DOUGLAS G. GEIB II
----------------------------
Douglas G. Geib II
6
EXHIBIT 12
<TABLE>
<CAPTION>
INTERAMERICAS COMMUNICATIONS CORPORATION
COMPUTATION OF EARNINGS TO FIXED CHARGES
(AMOUNTS IN THOUSANDS OF DOLLARS)
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
--------------------------------------------- ------------------
1993 1994 1995 1996 1997 1997 1998
(AS (AS (AS
RESTATED) RESTATED) RESTATED)
---- ------ ------ ------ ------- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Pre-tax loss $(87) (2,531) (2,873) (4,762) (15,866) (1,224) (5,278)
Fixed Charges:
Interest expense 7 313 319 246 5,934 215 5,403
Interest capitalized - - - - 712 - 206
---- ------ ------ ------ ------- ------ ------
Total fixed charges 7 313 319 246 6,646 215 5,609
Earnings (loss) before
income taxes and
fixed charges (80) (2,218) (2,554) (4,516) (9,220) (1,009) 331
Ratio of earnings
to fixed charges N/A N/A N/A N/A N/A N/A 0.07x
Deficiency of earnings
to cover fixed charges (87) (2,531) (2,873) (4,762) (15,866) (1,224) (5,278)
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-4 of InterAmericas Communications Corporation
of our report dated March 2, 1998, except as to Note 2 which is as of August 6,
1996, relating to the financial statements of InterAmericas Communications
Corporation, which appears in such Prospectus. We also consent to the references
to us under the headings "Experts", "Summary Condensed Consolidated Historical
and Pro Forma Combined Financial Data" and "Selected Historical Financial Data"
in such Prospectus. However, it should be noted that PricewaterhouseCoopers LLP
has not prepared or certified such "Summary Condensed Consolidated Historical
and Pro Forma Combined Financial Data" and "Selected Historical Financial Data."
PricewaterhouseCoopers LLP
Miami, Florida
August 10, 1998
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-4 of
our report dated February 25, 1998 (except for Note 30 for which the date is
June 2, 1998) on our audits of the financial statements of FirstCom Long
Distance, S.A. at December 31, 1996 and 1997 and for the two years in the
period ended December 31, 1997. We also consent to the reference to our firm
under the caption "Experts".
/s/ LANGTON CLARKE
Santiago, Chile
August 10, 1998
